Massie pled guilty to 3 separate robberies committed on January
7, 1965, in each case shooting the victim as he left. Mildred
Weiss was robbed and killed in her front yard.

He was sentenced
to death in 1965, but the sentence was commuted to Life by
Furman in 1972.

Massie was paroled in 1978 and murdererd liquor store owner
during armed robbery 8 months later. Pled guilty and was again
sentenced to death. He objected to an appeal, but the California
courts required one.

The sentence was reversed by the "Rose Byrd"
California Supreme Court because his lawyer did not consent to
guilty plea. He was found guilty and sentenced to death again in
1989, and eventually waived his final appeals.

California Department of
Corrections

SUMMARY:

Robert Lee Massie was convicted of one count
of first-degree murder in the Jan. 3, 1979 death of Boris G.
Naumoff. A San Francisco County jury sentenced Massie to death
on May 25, 1979.

Massie shot and killed Naumoff
during a liquor store robbery, and wounded Charles Harris,
another store employee. This crime occurred while Massie was on
parole for a murder he committed in Los Angeles County in 1965.
He had been given a death sentence for that crime, but it was
overturned in 1972 when the California Supreme Court ruled the
death penalty was unconstitutional.

According to a witness, on the afternoon of
Jan. 3, 1979, she entered a San Francisco liquor store to make a
purchase and saw Massie at the counter face-to-face with Naumoff,
the owner of the liquor store.

Thinking Massie was a customer,
the witness stood next to him and said hello to Naumoff. Naumoff
then handed Massie some money, which Massie placed in his jacket
pocket. Naumoff then said to the witness, "A guy can’t make a
living anymore."

At that time, Chuck Harris, an employee of
the store, walked in and spoke to Naumoff on his way to the back
room. As Massie turned to walk out the door, Naumoff went around
the counter after him. The two men started to wrestle in the
aisle.

Massie then fired several shots. One hit Naumoff in the
neck and killed him; another wounded Harris in his right thigh.
Although Massie escaped, the witness, who had ducked behind the
counter when the shots were fired, was able to call the police.

At 9:50 p.m. the next night, San Francisco
police officers apprehended Massie driving in his car. On Massie
they found a Ruger .357 magnum, fully loaded. In his coat they
found a loaded .380 Mauser automatic weapon with its hammer
cocked in a fireable position, and several boxes of ammunition.

Massie admitted that he had been under the influence of alcohol
or controlled substances when he committed the crimes.

MASSIE’S FIRST DEATH SENTENCE AND CRIMES:

Massie’s first death sentence came after he
committed a series of robberies and assaults between January 7
and January 15, 1965, in Los Angeles County.

On the evening of
January 7, Franklin Boller was getting out of his car in front
of his home in West Covina when Massie approached him, hit him
in the mouth with a rifle, and demanded money.

Boller gave
Massie his wallet and coin purse. Massie then fired a shot at
Boller, grazing the side of his head. Later that evening, Morris
and Mildred Weiss were returning to their San Gabriel home.

As Mrs. Weiss got out of the car, Massie approached and fatally
shot her. He then jumped into a waiting car and sped off. Just
after midnight that night, Massie entered a Baldwin Park bar,
brandished a rifle, and said, "This is a stickup."

He took money
from the cash register and the wallets of the bartender and a
patron. The bartender threw a beer bottle at Massie, who then
fled.

On January 15, Massie encountered Frank Patti
at MacArthur Park in Los Angeles. The two of them agreed to go
to Patti’s hotel room. There, Massie pulled a revolver, demanded
money, and told Patti to take his clothes off. Patti attacked
Massie, who fired three shots and fled. Two shots hit Patti in
the stomach and the third grazed his neck.

Massie was arrested
on January 20, 1965, for the assault on Patti. He gave two tape-recorded
statements in which he admitted committing all of these crimes
and said he was trying to rob Mrs. Weiss when he shot and killed
her. He was convicted of four counts of robbery, one count of
attempted murder, and one count of murder.

EXECUTION:

At 12:20 a.m., March 27, 2001, the execution
by lethal injection of Robert Lee Massie began in San Quentin
State Prison’s execution chamber. Massie was pronounced dead at
12:33 a.m.

Massie’s last meal included two vanilla milkshakes,
extra crispy french fries, extra crispy fried oysters and soft
drinks. He spent his last hours with his spiritual advisors and
his attorneys. Robert Lee Massie’s last words were "Forgiveness.
Giving up all hope for a better past."

ProDeathPenalty.com

On Jan. 7, 1965, Robert Massie murdered
Mildred Weiss, a mother of two married to a furniture store
owner.

Massie shot Weiss, 48, outside her San Gabriel home
during a botched follow-home robbery. He received a stay of
execution 16 hours before he was to enter the gas chamber, even
though he had urged officials to carry out the sentence.

Then-Gov.
Ronald Reagan stayed the execution so that Massie could testify
in the trial of his alleged accomplice. After testifying, he
returned to prison and remained there when the California
Supreme Court temporarily banned executions.

Massie's death
sentence was commuted to life in prison when the U.S. Supreme
Court ruled capital punishment unconstitutional in 1972.

He was paroled and set free in 1978. But 8
months later he was arrested for the murder of grocery store
owner Boris Naumoff during a robbery attempt. Chuck Harris, a
clerk at Naumoff's liquor store who was hit by one of Massie's
bullets, survived with a leg wound. After receiving a death
sentence for that crime, Massie spurned appeals on his behalf
and once again asked to be executed.

The state Supreme Court,
however, threw out his conviction on grounds he pleaded guilty
over the objections of his lawyers. Massie was retried and again
sentenced to die for Naumoff's killing in a 1989 retrial.
Earlier this year Massie withdrew his federal appeal and
instructed his lawyers not to make any further efforts to save
his life, clearing the way for his long-desired execution.

In his petition to end his appeals, Massie said that he would
rather die than continue living on death row in San Quentin. He
said life on death row is a "lingering death." Even if his death
sentence is reversed or commuted by an appeal, he would remain
in prison for the rest of his life for shooting Boris Naumoff to
death at a San Francisco liquor store. That is why he said he
wants a "swift execution."

California's condemned inmates are
more likely to die of old age or illness than by execution. More
than 100 inmates have been on death row for more than 15 years.

In recent days, death penalty opponents tried
a flurry of last-ditch efforts to save Massie. They argued in
state and federal courts that Massie had long been racked by
depression and other mental illness, a fact they claim was not
argued strongly enough throughout Massie's time in prison.

They
also said Frederick Baker, a corporate lawyer who represented
Massie, had abdicated his responsibility by seeking to pave the
way for Massie's execution. The late moves angered both Massie
and the prosecutors who had sought his execution for years. "I
just find it curious that we are suddenly hearing from attorneys
who have never met Massie and weren't at any of his hearings in
which a judge found him competent, that he knows what he is
doing," said Deputy Atty. Gen. Bruce Ortega. "I just don't
understand why they are not respecting his opinion." "The hurt
for my family will never stop," said Rick Naumoff, the son of
one of Massie's victims. "We continue to deal with the loss of a
husband, a father, a grandfather."

Robert Lee Massie

Los Angeles Times

March 27, 2001

CALIFORNIA - Robert Lee
Massie, a convicted killer who spent 2 separate stints on death
row and gained notoriety while pursuing his own demise for more
than 30 years, was executed by the State of California early
this morning.

Massie, who killed in 1965 and again in 1979, was
pronounced dead at 12:33 a.m. at San Quentin State Prison. A
combination of drugs was injected into the 59-year-old
murderer's veins, first rendering him unconscious, and then
killing him by stopping his heart and lungs.

Bob Martinez, a spokesman for the California
Department of Corrections, said Massie's last words were: "Forgiveness.
Giving up all hope for a better past." Witnesses described
Massie as awake, alert and cooperative.

He had entered the
execution chamber shortly after midnight accompanied by 5 guards
who placed him on a gurney and strapped his arms. He picked up
his head several times after the drugs began flowing through his
veins.

At one point guards turned the gurney so Massie could
make eye contact with his attorney, Frederick Baker, and 2
spiritual advisors. The pale, slight inmate had spent more years
on San Quentin's death row than any currently condemned man.

His case was one of the most peculiar in
state history. In all, Massie was convicted and sentenced to die
on 3 occasions for the 2 murders. On Monday, the U.S. 9th
Circuit Court of Appeals and the U.S. Supreme Court rejected
efforts to stay the execution.

The appeals by opponents of the
death penalty were made despite Massie's objections. Outside the
prison gates, several hundred protesters gathered. A dozen had
walked 25 miles from San Francisco carrying signs that read
"Abolish the Death Penalty" and "Executions Teach Vengeance and
Violence."

But prison officials said Massie, whom they described
as upbeat in recent days, was preparing to die. Relatives and
friends of Massie's victims also were preparing for the
execution. About a dozen of them gathered for dinner at a Marin
County restaurant--some meeting each other for the 1st time.
Most admitted they had been nervous and got little sleep the
past few days.

"The hurt for my family will never stop,"
said Rick Naumoff, the son of one of Massie's victims. "We
continue to deal with the loss of a husband, a father, a
grandfather."

Over the years, Massie repeatedly said he would
rather be dead than live in confinement for the rest of his days.
He called his quest for death "a mission" to expose what he
considered the unfair process of automatic appeals in California
capital cases.

Convicted killers, he said, should be allowed to
stop all appeals. "I'm tired," he said in a recent telephone
interview. "I just don't want to live the rest of my life in
jail."

Massie's death sentence stemmed from the
fatal shooting in 1979 of 61-year-old Boris Naumoff in the
liquor store Naumoff owned in San Francisco. But that was not
the 1st time Massie had killed. After a childhood of neglect and
abuse in Virginia, Massie had drifted to California by 1965. He
was 24, already a veteran of rough-and-tumble jails and
well-schooled in crime.

On Jan. 7, 1965, Massie murdered Mildred
Weiss, a mother of two married to a furniture store owner.
Massie shot Weiss, 48, outside her San Gabriel home during a
botched follow-home robbery.

Massie pleaded guilty, and by 1967
was so close to being executed that he had ordered his last meal
and made a will. He escaped death when then-Gov. Ronald Reagan
stayed the execution so that Massie could testify in the trial
of his alleged accomplice.

After testifying, he returned to
prison and remained there when the California Supreme Court
temporarily banned executions. Along the way, Massie began
decrying the conditions on death row as harsh and cruel and he
repeatedly told state officials he did not want to be kept
alive.

By the early 1970s, he was dubbed the "Prisoner
Who Wants to Die" by the news media. He wrote magazine articles
making the case for his own execution and was quoted frequently.

But in 1972, the U.S. Supreme Court banned executions. Massie
and more than 100 men and women on California's death row had
their sentences commuted to life with the possibility of parole.
Massie, a model prisoner who immersed himself in the law and
became an advisor to many inmates, was given a 2nd chance when
the state's parole board let him free in the summer of 1978.

Only months later, on Jan. 3, 1979, he killed Naumoff. Chuck
Harris, a clerk at Naumoff's liquor store who was hit by one of
Massie's bullets, survived with a leg wound.

After pleading guilty, Massie was sentenced
to die. Again he welcomed the verdict, openly fighting the
automatic appeals process. But the state's high court, led by
then-Chief Justice Rose Elizabeth Bird, overturned Massie's
conviction because he had pleaded guilty against the advice of
his attorney. The court ordered a retrial.

In 1989, Massie was
convicted of murder for a 3rd time. He temporarily sought
freedom through state and federal courts, but after a while he
returned to saying he wanted to die. "I just decided to step up
to the plate and say enough," Massie said earlier this month. 2
months ago, a federal judge ruled him competent and decided he
could drop all appeals.

In recent days, death penalty opponents tried
a flurry of last-ditch efforts to save Massie. They argued in
state and federal courts that Massie had long been racked by
depression and other mental illness, a fact they claim was not
argued strongly enough throughout Massie's time in prison.

They
also said Frederick Baker, a corporate lawyer who represented
Massie, had abdicated his responsibility by seeking to pave the
way for Massie's execution.

The late moves angered both Massie
and the prosecutors who had sought his execution for years. "I
just find it curious that we are suddenly hearing from attorneys
who have never met Massie and weren't at any of his hearings in
which a judge found him competent, that he knows what he is
doing," said Deputy Atty. Gen. Bruce Ortega. "I just don't
understand why they are not respecting his opinion."

Massie becomes the 1st condemned inmate to be
put to death this year in California and the 9th overall since
the state resumed capital punishment in 1992. Massie becomes the
20th condemned inmate to be put to death this year in the USA
and the 703rd overall since America resumed executions on
January 17, 1977.

Massie execution criticized at Justice Conference

By Jennifer C. Vergara -
Tidings Online

Friday, March 23, 2001

"Robert Massie is tense, sharp, edgy," said
Mike Farrell, describing a man the state of California has
sentenced to die next week. Farrell, president of an advocacy
group called Death Penalty Focus, spoke about Massie during a
workshop entitled "The Campaign for a Death Penalty Moratorium"
at the Justice and Peace Conference workshop held at Loyola
Marymount University March 17. The impending execution of Massie
(scheduled for 12:01 a.m. on March 27) is now the focus of
upcoming vigils and arguments for and against the death penalty.

In 1965, Massie killed San Gabriel resident
Mildred Weiss while robbing her and her husband. He received the
death penalty but it was commuted to life in 1972. After six
years, Massie was paroled - only to fatally shoot liquor
storeowner Boris Naumoff months later. Against his lawyer's
objections, Massie pled guilty and again received the death
penalty, which was automatically appealed several times, despite
Massie's refusal, was overturned in 1985, then was reaffirmed by
another jury in 1989.

Farrell told the participants that Massie -
who was abused by parents, lived in numerous abusive foster
homes and was gang-raped in prison at age 17 - withdrew his
federal appeal, accepting his sentence to die by lethal
injection because, as Farrell quoted him, "this old, scarred
body is ready to rest."

Praying for peace - At noon on March 26,
Masses in petition for Massie's eternal rest will be held at St.
Camillus Church and at the Archdiocesan Catholic Center, Los
Angeles.

In Camarillo, Padre Serra Church will be the site of an
interfaith prayer service at 5:30 p.m. Another interfaith vigil
will be held at 7:30 p.m. at Holy Name of Mary Church in San
Dimas.

Following Massie's death, a 7:30 a.m. memorial Mass will
be celebrated at St. Camillus. These liturgies are planned by
religious communities and private groups not just for Massie,
but for all death row inmates and for the end of the death
penalty. In urging people to answer the Catholic Christian call
to end violence, death penalty opponents in the archdiocese
quote from Cardinal Roger Mahony's statement last May, at the
National Press Club in Washington, D.C.: "This is a time for a
new ethic - justice without vengeance. We cannot restore life by
taking life. We cannot practice what we condemn. We cannot
contain violence by using state violence."

'Eye for an eye' - A Gallup poll, conducted
from Feb. 19-21, showed that 67 percent of respondents favor the
death penalty (down from a high of 80 percent in 1994).

When the
Gallup poll asked them why they support the death penalty, 48
percent quoted the Old Testament: "An eye for an eye." Farrell,
in his workshop, said this is the rationale for the May 16
execution of Timothy McVeigh, the "Oklahoma bomber" responsible
for the death of 168 people. Farrell argued against this
sentence and quoted Bud Welch, whose 23-year-old daughter died
in the blast, saying it will also be "an act of revenge and hate
and will make [McVeigh] a martyr in the eyes of those who share
his beliefs…. "Should the last thing we see of Timothy McVeigh
be a raised fist and a smirk on his way to execution, he would
have won. The chemicals pumped into his veins will validate his
war against the United States government and justify in his mind,
and in the mind of many others, the taking of 168 innocent lives."

Tough on crime - The more effective
punishment for criminals like McVeigh and Massie is life without
parole (LWOP), Farrell asserted. LWOP, he told his audience, "removes
murderers from society but without the horrors of killing
prisoners."

Since 1978, more than 2,500 convicted murders have
been given LWOP sentences in California and not one has been
released.

Life without possibility of parole, Farrell added, is
a punishment so severe many inmates actually dread it: "To exit
this earth with a newspaper headline and a vigil outside prison
walls is preferred by many to the anonymity of the seeming
eternity of life in prison." Moreover, LWOP - enacted in 42
states, the District of Columbia and the federal government -
can save the government millions of dollars, stated Farrell. "Death
penalty trials are estimated now to be six times higher than the
cost of a regular murder trial," he stated. LWOP also prevents
the execution of the innocent.

Since 1992, Farrell said, 435
people were convicted of capital crimes, only to be found
innocent later. The criminal justice system, Farrell said, is
tainted by racism. Of the 20 people on federal death row, 18 are
minorities. One thing LWOP cannot do that death penalty can,
Farrell added, "is provide the pandering politicians with simple
frontier-style justice, allowing them to boast of being 'tough
on crime' without doing anything to stop it."

State-Assisted Suicide: The
Execution And Triumph Of Robert Massie

By Michael A. Kroll
- Pacific News Service

March 27, 2001

Good fortune and human kindness are not often
seen in the story of the life and death of Robert Massie, but
harm wrought by the state -- through negligence and malice -- is
ever present. In the end, Massie succeeded in making the state
finish the job by putting him to death. PNS associate editor
Michael A. Kroll is a veteran death penalty abolitionist and
founder of the Death Penalty Information Center in Washington,
D.C.

I am guilty of a homicide. I did not act
alone. We, the taxpayers of California, performed the killing
collectively.

The man we killed was my friend. I came to know
Bob Massie about 15 years ago when he wrote to tell me he
admired my writings about the death penalty. Over the years we
met many times and exchanged copious communication.

Bob's
letters were always filled with citations from capital cases,
and always included an attempt to convince me of the soundness
of his legal thinking. He argued that the state law mandating an
automatic appeal in any case where the death penalty is imposed
amounts to trying someone twice for the same crime. This --
double jeopardy -- is unconstitutional. Therefore, he insisted,
he should be set free.

Massie decided he could best prove his point
by refusing to appeal and demanding to be put to death. It
became the singular goal of his sad life. Last January, Massie
asked the court to dismiss his federal petition for review.

He asked me to increase my visits and witness his execution so I
could write about his death and make the citizens of California
understand that he was dying for the cause of abolition. He was
"on a mission." I told him I did not understand how this could
end the death penalty, and that I had no desire to witness his
execution. But I agreed so I could continue visiting and to try
to dissuade him.

One week before his execution, I went to
court as his "next friend," to try to block the execution on the
grounds that he was mentally ill, unstable, profoundly depressed,
and therefore not competent to waive judicial review. From that
moment, I was Massie's enemy.

He saved his most passionate
hatred for the lawyers who continued to try to save his life,
and now he cast me into that despised category. I never got
around to asking my friend if he had any recollection of his
mother giving him up to the care of the state when he was not
yet six years old. I know he remembered -- because he told me he
wanted to forget -- his years in foster homes, spread-eagled
beatings, his head pushed down into the toilet bowl and held
under.

In juvenile hall at age 11, he had a few new
experiences. Small of stature and somewhat effeminate, he was
gang raped repeatedly. But he never talked much about any of
that, did not think it mattered, did not see a connection to his
current mental health. "Everybody's a victim," he would say. He
did share one searing memory.

At 12, my friend was put on a Virginia chain
gang. The boys went out in all weather, chained together, and
dug trenches that they then filled. One day, one of the boys
just fell over dead. A guard unchained the dead body and tossed
it into the pit. The chained boys covered him over and continued
working.

Massie was pleased to know that I work with
young writers in juvenile hall. He told me to pass them a
message of understanding and solidarity. They understood him --
not knowing that when he was their age, medical reports
described him as "a very disturbed little boy who will need care
outside of his home for a long period of time." The little boy
got no care. Ever.

At 17, beginning to fall apart, he was
transferred to a prison medical facility and evaluated as having
"undergone a severe personality disorganization." Outside, he
began to treat his symptoms with alcohol, methamphetamines, and
other drugs.

In 1965, strung out on his "medicines," my friend
killed a fellow human being in a robbery attempt gone bad. He
pled guilty and was sent to California's death row. He tried,
unsuccessfully, to waive his appeals. A prison psychologist
diagnosed him with a disorder "tantamount to an acute
schizophrenic reaction."

Then, in 1972, the death penalty was declared
unconstitutional. A few years later, after a brief period of
freedom, my friend was involved in an altercation in a San
Francisco liquor store. As he was leaving, the proprietor
grabbed him from behind. A lifetime in prisons had conditioned
him to fear above all else being held from behind. He freed one
hand, drew out a revolver and aimlessly fired three times. One
shot hit the proprietor and killed him.

During his trial, my friend was "in and out
of competence," he said. He had been taking drugs steadily, and
the jail medical staff prescribed lithium to control his
paranoia and depression. But he remembered that at the very time
he was being tried, convicted and sentenced to death for his
unplanned homicide, Dan White was being sentenced to a short
term of years in a courtroom just down the hall for methodically
killing the mayor of San Francisco and Supervisor Harvey Milk.
Massie wanted to die. He tried to kill himself. He failed. He
tried again. Another failure.

By the time of his 1989 retrial, he was
insanely committed to his theory of double jeopardy. But, as
every attorney who had represented him or corresponded with him
had warned, no court would accept his theory, and he was again
sentenced to death. He saw all this as proof that the courts are
corrupt and that defense lawyers were his real adversaries.

To overcome them, he decided, he had to die
-- dismiss his appeals and seek to be executed. But he realized
that a court would not allow him to do that if he was seen as
irrational or incompetent. So he stopped seeing psychiatrists.
He stopped creating a record of his mental status, so that by
the time the question of his competence came up again, there was
no recent record.

By chance, the lawyer appointed to represent
him had no experience in criminal law and would do whatever he
was told by an intelligent client. My friend, Bob Massie,
maneuvered the state of California into assisting in his
suicide. He had his own lawyer doing the dance of death with the
attorney general and managed to avoid being declared incompetent.

A brilliant performance. But brilliance is
not the same as mental health. I greatly admired, and shall
greatly miss, Bob Massie's intelligence. At the same time, I
feel guilty relief that he no longer has to wrestle with the
demons of his dark mental processes that rendered him irrational
and incompetent, despite the courts' rulings.

And I believe that
my efforts to prevent the suicide of this mentally unstable man
unwittingly gave Bob Massie a triumphant exit, proof that he
could outsmart and outmaneuver any conspiracy to keep him alive.
How satisfying it must have been at last to have been led into
the chamber. How competent he must have felt. I hope the last
thought he had before we killed him was, "Ha ha! I beat them all.
I won."

Fixin' To Die: Let My Death
Give Life to a Challenge of California's Machinery of Execution

By Robert Lee Massie

San Francisco Chronicle

March 14, 2001

SOON I will be dead. Early on the morning of
March 27, the state of California will flood my veins with a
lethal cocktail of sodium pentothal, pancuronium bromide and
potassium chloride. Death will follow swiftly. I could live for
several more years.

I voluntarily abandoned federal appellate
review of California's judgment of death. Many have labeled this
suicide. It is not. I did not ask the district attorney to
charge my case as a capital crime. I did not persuade a jury to
recommend the death penalty. I did not ask the trial judge to
impose the death penalty. I will not push the plunger that
injects poison into my bloodstream. These are acts of the state
of California on behalf of you, "The People."

It is preposterous
to call my death at the hands of the state - whether now or
later - an act of "suicide." Even if I were to win on appeal, I
will never again see the outside of prison. I have lived in
prison most of my adult years, nearly 30 on Death Row. I am a
rational man. I do not consider forgoing the raptures of another
decade behind bars to be an irrational decision.

I knew my decision would draw attention to my
case, and it has. I have something to say, and I want
Californians to hear it: In your name, judges are violating
their oaths to uphold the Constitution. They are disregarding
their obligations to the rule of law in service of a process -
the intricate machinery of extermination, constructed by the
Legislature and legitimized by the courts, which exists for the
sole purpose of producing a constitutionally airtight death
sentence.

Take my case. When I came up for trial in
1979, my state-appointed lawyer tried to prevent me from
pleading guilty. When he failed, and I was sentenced to death,
another state-appointed lawyer appealed my conviction to the
state Supreme Court against my wishes.

The Rose Bird court
reversed my conviction because my state-appointed lawyer didn't
agree with my guilty plea. It sent the case back for a retrial
that I never asked for and didn't want.

The second trial should
have been barred by the double jeopardy clause, because a
defendant cannot be tried twice for the same crime unless he -
not the state - appeals. In my case, it was the state's appeal,
taken against my wishes, that led to the second trial. But I was
again tried, convicted and sentenced to death. The state Supreme
Court refused to enforce my constitutional right, which would
have led to freedom, to be free from double jeopardy.

The court considered and rejected arguments I
never wanted to make (because they would have resulted in yet
another trial that I didn't want) to make the decision appear to
meet constitutional requirements. It affirmed my conviction on
such blatantly specious grounds that the court's opinion can
only be viewed as a deliberate effort to skirt the Constitution.

This was a transparent violation of each justice's oath to
uphold the Constitution, and my execution will therefore be
unconstitutional. I have devoted more than a decade to studying
the law in capital cases. Many men on Death Row have asked me to
help them evaluate the work of their state-appointed attorneys -
purportedly on their behalf.

Time and time again, I have seen
solid constitutional arguments superficially asserted (if at all)
and buried under a mountain of frivolous arguments that have no
chance of winning. This allows the court to write lengthy
opinions, rejecting issue after issue, without ever coming to
grips with the serious constitutional issues which should have
been the heart of the case.

Death penalty litigation is the state's
process from beginning to end: state prosecutors, state-agency
lawyers appointed to represent defendants, an intricate scheme
created by state legislators geared toward one inevitable result,
and a court whose complicity constitutes a repudiation of the
justices' obligation to honor and uphold the Constitution.

I hope my death will give life to a challenge to California's
machinery of death. Not simply because I got a raw deal, but
because I see dishonesty and incompetence leading to unnecessary
death all around me, every day. The state's need for a well-oiled
machine has assumed a position of superiority over the
constitutional rights of defendants. The machine must be
dismantled and replaced with attorneys who truly represent their
clients and judges who enforce and uphold the Constitution.

Robert Lee Massie is scheduled to be executed
on March 27 at San Quentin State Prison.

Massie, Robert Lee

CDC# A90159

Sex: M

Alias:

None.

Race:

White

Date Received:

05/28/1979

DOB:

12/24/1941

Education:

Unknown

Location:

San Quentin State Prison

Married:

No

Sentence:

County of Trial:

San Francisco

Sentence Date:

05/25/1979

County of Residence:

Unknown

County of Offense:

San Francisco

Offense Date:

Affirmed

Court Action:

Affirmed

Court Date:

11/30/1998

Case #:

98806

Victims:

Boris G. Naumoff
(male);
Charles Harris (male, survived)

Execution:

At 12:20 a.m., March 27, 2001, the execution by
lethal injection of Robert Lee Massie began in San Quentin State
Prison’s execution chamber. Massie was pronounced dead at 12:33
a.m.

Massie’s last meal included two vanilla
milkshakes, extra crispy french fries, extra crispy fried oysters
and soft drinks. He spent his last hours with his spiritual
advisors and his attorneys.

Robert Lee Massie’s last words were "Forgiveness. Giving up all
hope for a better past."

875 F.2d 1386

Robert L. MASSIE, Petitioner-Appellant,v.
Michael HENNESSEY; State of California, Respondents-Appellees.

No. 88-1574.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 16,
1988.
Decided May 23, 1989.

Appeal from the United States
District Court for the Northern District of
California.

Before
BRUNETTI and LEAVY, Circuit Judges, and CURTIS,*
District Judge.

LEAVY, Circuit
Judge:

FACTS

Against the
advice of his counsel, petitioner Robert Lee
Massie pleaded guilty to robbery and first
degree murder. The trial judge accepted Massie's
plea and sentenced him to death.

Both the
conviction and sentence were automatically
appealed to the California Supreme Court,
pursuant to California Penal Code Sec. 1239(b) (West
1982) (amended 1989).1
Massie moved the state court to dismiss the
appeal, on the grounds that he had a
constitutional right to waive the appellate
process. The motion was denied. While Massie's
state court appeal was pending, he sought a writ
of habeas corpus in federal district court. The
writ was denied. This court affirmed, holding
that Massie did not have a constitutional right
to waive the automatic appeal. Massie v. Sumner,
624 F.2d 72 (9th Cir.1980), cert. denied, 449
U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981).

The California
Supreme Court reversed Massie's conviction,
holding that as a matter of law the trial court
could not accept a guilty plea against the
advice of counsel in a capital case. People v.
Massie, 40 Cal.3d 620, 625, 221 Cal.Rptr. 140,
144, 709 P.2d 1309, 1313 (1985). The State of
California now seeks to prosecute Massie for the
robbery and murder.

Massie again
sought a federal writ of habeas corpus. He now
claimed that a new trial would violate due
process under the double jeopardy clause of the
fifth amendment,2
because the automatic appeal after his guilty
plea and sentencing was taken over his objection.
He also contends the automatic appeal statute
violates his equal protection rights, and that a
retrial is barred on grounds of res judicata,
due process, and multiple punishment.

We affirm the
district court's denial of the writ of habeas
corpus. We decide here only the narrow question
of whether the double jeopardy clause applies to
a death penalty case where there is an automatic
appeal. We hold that Massie may not successfully
claim double jeopardy, because: (1) he had no
expectation of finality in his sentence; (2) the
State of California has constitutional concerns
regarding imposition of the death sentence that
override any of Massie's objections; and (3)
regardless of its mandatory character, the
appeal is considered to be Massie's, because it
provides him with a substantial benefit.

DISCUSSION

Double Jeopardy

The issue
before us is one of first impression. The
constitutional protections of the double
jeopardy clause, applicable to the states by the
fourteenth amendment, are several:

Th[e double
jeopardy] guarantee has been said to consist of
three separate constitutional protections. It
protects against a second prosecution for the
same offense after acquittal. It protects
against a second prosecution for the same
offense after conviction. And it protects
against multiple punishments for the same
offense.

The
constitutional prohibition against "double
jeopardy" was designed to protect an individual
from being subjected to the hazards of trial and
possible conviction more than once for an
alleged offense.... The underlying idea ... is
that the State with all its resources and power
should not be allowed to make repeated attempts
to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as
well as enhancing the possibility that even
though innocent he may be found guilty.

However, the
Court observes that the "pronouncement of
sentence has never carried the finality that
attaches to an acquittal." DiFrancesco, 449 U.S.
at 133, 134, 101 S.Ct. at 435, 436. A defendant
"is charged with knowledge of the statute and
its appeal provisions, and has no expectation of
finality in his sentence until the appeal is
concluded or the time to appeal has expired." Id.
at 136, 101 S.Ct. at 437.

Here, Massie
could have no expectation of finality upon
sentencing, where California provides for a
mandatory appeal upon imposition of a death
sentence, even though he challenged that appeal.

The Supreme
Court recognizes that the death penalty is
different from any other punishment imposed
under our system of criminal justice. Because of
the uniqueness of that penalty, the Court has
held that death cannot be imposed under
circumstances where there is a substantial risk
that it would be imposed in an arbitrary and
capricious manner. Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The
Court has also stated that a statutory scheme
that provides for the automatic appeal of all
death sentences is an important safeguard
against arbitrariness and caprice. Gregg v.
Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2937,
49 L.Ed.2d 859 (1976).

In line with
Furman and Gregg, California has a concern for
ensuring against arbitrariness and caprice in a
murder conviction and imposition of the death
sentence. This most important concern must
override any double jeopardy objection Massie
may have. This court held previously that the
State of California constitutionally may require
a higher court review of the death sentence and
conviction. Massie, 624 F.2d at 74.

We observed
that in California, the courts have recognized
that they have a duty to conduct such a review,
which they cannot avoid or abdicate. Id. at
73-4. The California Supreme Court's decision
upon mandatory appeal in Massie, that a trial
court cannot accept a guilty plea against the
advice of counsel in a capital case, reflects
that State's concern that the death penalty be
imposed in accordance with the Constitution.

Ordinarily, a
defendant's appeal from a judgment of conviction
constitutes a waiver of the double jeopardy
defense. People v. Powell, 40 Cal.App.3d 107,
143, 115 Cal.Rptr. 109, 132 (1974) (citing 1
Witkin, California Crime, section 215 at 206
(1963)). We reject Massie's argument that
because he objected to the mandatory appeal he
did not waive the double jeopardy defense. We
agree with the California Supreme Court's
observation in Powell that the mandatory appeal
is of substantial benefit to a defendant and to
society regardless of the attempt to waive it,
and that "[i]t is not logical that its
provisions should operate to the benefit of the
accused and to the detriment of society."
Powell, 40 Cal.App. at 143, 115 Cal.Rptr. at
132. The appeal is fairly characterized as
Massie's even though it is mandatory, and his
waiver of any defense of double jeopardy must be
implied by operation of law.

Because the
appeal is Massie's, the double jeopardy
guarantee " 'imposes no limitations whatever
upon the power to retry a defendant who has
succeeded in getting his first conviction set
aside[.]' " DiFrancesco, 449 U.S. at 131, 101
S.Ct. at 434 (quoting Pearce, 395 U.S. at 720,
89 S.Ct. at 2078 (emphasis in original)). There
is no limit because " '[i]t would be a high
price indeed for society to pay were every
accused granted immunity from punishment because
of any defect sufficient to constitute
reversible error in the proceedings leading to
conviction.' " Id. (quoting United States v.
Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589,
12 L.Ed.2d 448 (1964)). " '[T]o require a
criminal defendant to stand trial again after he
has successfully invoked a statutory right of
appeal to upset his first conviction is not an
act of governmental oppression of the sort
against which the Double Jeopardy Clause was
intended to protect.' " Id. (quoting United
States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187,
2194, 57 L.Ed.2d 65 (1978)). The public has an
interest in the prosecution having one complete
opportunity to convict those who have violated
its laws. Arizona v. Washington, 434 U.S. 497,
509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978).3

Equal Protection

Massie
contends that the automatic appeal statute
denies him equal protection of the laws. To make
this argument, he presents a hypothetical
situation in which two co-defendants are found
guilty of murder. One is sentenced to life
imprisonment, while the other is sentenced to
death. If the non-capital defendant can waive
appeal, but the capital defendant cannot, and
the death sentence is reversed after automatic
appeal, a violation of equal protection occurs,
according to Massie, because of the two
similarly situated defendants, one can be
retried while other cannot.

Massie's
premise, however, is erroneous. In his example,
the two defendants are not similarly situated.
The relevant comparison for equal protection
purposes is between two defendants, both of whom
are sentenced to death. Since Sec. 1239(b) is
mandatory for all capital defendants, the law
does not treat similarly situated capital
defendants differently. Massie's equal
protection claim fails.

Res Judicata

Massie claims
that res judicata bars the state from
prosecuting him on the murder and robbery
charges. According to Massie, final judgment was
entered on those charges when the trial court
accepted his guilty plea. In support of his
proposition, Massie cites Corey v. United States,
375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229
(1963). Corey merely states, however, that the
sentence is the final judgment for the purposes
of appeal in a criminal case. Id. at 174, 84
S.Ct. at 302.

Massie appears
to argue that if a conviction is reversed on
appeal, the government is barred by res judicata
from retrying a defendant. We have already held
that "[a] reversed ... judgment cannot serve as
the basis for a disposition on the ground of res
judicata." Ornellas v. Oakley, 618 F.2d 1351,
1356 (9th Cir.1980). Massie's argument is
rejected.

Due Process

Massie's due
process claim is that the automatic appeal
statute subjects him to "a potentially endless
number of retrials." Massie cites Klopfer v.
North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18
L.Ed.2d 1 (1967). The question in Klopfer was "whether
a State may indefinitely postpone prosecution on
an indictment without stated justification over
the objection of an accused who has been
discharged from custody." Id. at 214, 87 S.Ct.
at 989.

The due
process argument raised by Massie is
distinguishable from Klopfer. California has not
suspended prosecution of Massie. Even if he
could theoretically be retried an endless number
of times under the automatic appeal statute, the
state cannot suspend his prosecution under the
statute. Klopfer, on the other hand, was left in
limbo when the state would neither prosecute him
nor dismiss the indictment. Massie is not in
limbo so long as his appeal is being prosecuted.
We reject Massie's due process claim.

Double Punishment

Massie
contends that reimposition of the death penalty
would constitute double punishment since his
time served in prison could not be credited to
him. Double punishment is defined as punishment
already endured but not credited against a later
sentence imposed for any one crime. See Pearce,
395 U.S. at 718, 89 S.Ct. at 2077. However, if
Massie is convicted for a term of years, his
time already served can be credited against that
conviction. If, on the other hand, Massie is
sentenced to death, it would be impossible to
credit time served against such a sentence.
Therefore, Massie's argument has no
applicability on these set of facts.

Robbery

The California
Supreme Court reversed Massie's robbery
conviction because if "allowed to stand, 'it
would be conclusive on retrial of the murder
count and the prosecution would need only prove
the fact of the killing in its perpetration in
order to obtain a new conviction of first degree
murder.' " Massie, 40 Cal.3d at 625, 221
Cal.Rptr. at 144, 709 P.2d at 1313 (quoting
People v. Chadd, 28 Cal.3d 739, 755, 170
Cal.Rptr. 798, 807, 621 P.2d 837, 846, cert.
denied, 452 U.S. 931, 101 S.Ct. 3066, 69 L.Ed.2d
431 (1981)).

Nevertheless,
Massie contends that the state can not
resentence him on the robbery count without
violating double jeopardy and double punishment
principles. This argument is not fundamentally
different from his previous double jeopardy
arguments. In short, since Massie may not waive
the automatic appeal, see Massie, 624 F.2d at
73-74, the appeal waives any claim of double
jeopardy. Powell, 40 Cal.App.3d at 143, 115
Cal.Rptr. at 132. Further, if Massie is
convicted on the robbery count on remand, any
time he previously served can be credited
against a later sentence. No prohibition against
multiple punishment is violated.

This case is
distinguishable from Arizona v. Rumsey, 467
U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164
(1984). There, the double jeopardy clause
barred imposition of a death sentence on
remand after appeal, when Rumsey was
initially sentenced to life imprisonment.
The Court found that Rumsey's original
sentence was an acquittal on the merits of
the central issue: whether death was the
appropriate punishment for his offense. Thus,
double jeopardy prevented a second sentence
of death where there was an acquittal. 467
U.S. at 211, 104 S.Ct. at 2310

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,v.ROBERT LEE MASSIE, Defendant and
Appellant.

Opinion No. S010775

Date Filed: November
30, 1998

San Francisco CountyJudge: Edward Stern

In 1979,
defendant Robert Lee Massie
pleaded guilty, against the advice of
counsel, to the murder (Pen. Code,
§ 187)

1
and robbery (§ 211) of Boris Naumoff,
and he admitted special circumstance
allegations of prior murder (§ 190.2,
subd. (a)(2)) and robbery murder
(§ 190.2, former subd. (a)(17)(i), now
subd. (a)(17)(A)). He also pleaded
guilty to the robbery (§ 211) of
Yasphine Khashan and George Statara,
assault with a deadly weapon (§ 245) on
Charles Harris, and four counts of
possession of a concealable firearm by a
convicted felon (§ 12021). After a
penalty trial at which defendant waived
his right to a jury and represented
himself, the trial court set the penalty
at death.

In
1985, this court reversed defendant’s
death sentence, the convictions for the
robbery and murder of Naumoff, and the
two special circumstances, holding that
defendant’s guilty pleas to the murder
and robbery charges were invalid because
they were made against the advice of
counsel, in violation of section 1018.
(People v. Massie (1985)
40 Cal.3d 620 (Massie I).)
Section 1018 expressly prohibits a trial
court from accepting a “plea of guilty
of a felony for which the maximum
sentence is death, or life imprisonment
without the possibility of parole,” when
the plea is “without the consent of the
defendant’s counsel.” At a retrial in
which defendant was represented by
counsel, a jury convicted defendant of
the crimes against victim Naumoff and
found true the two special circumstance
allegations, and at the penalty phase
the jury returned a verdict of death.
Defendant’s appeal to this court is
automatic. (§ 1239, subd. (b).)

We
affirm the judgment in its entirety.

I.
Facts

A. Guilt Phase --
Prosecution’s Case

On
the morning of January 3, 1979,
defendant entered the Twin Peaks Grocery
in San Francisco, looked around, and
left without buying anything. A short
time later, he returned to the store and
again departed without making a purchase.
When he did this a third time, store
proprietor Grant Ridgeway followed
defendant out of the store.2
Defendant walked one block to a
Chevrolet Vega automobile that was
parked with the engine running, got in,
and drove away. Ridgeway observed the
car’s license plate and, having nothing
to write with, asked a woman in a nearby
house to write it down for him. She
wrote down “119 GL,” omitting one of the
letters that Ridgeway had asked her to
write down. Ridgeway later gave the
piece of paper with the partial license
number to the police.

Around
1:45 that afternoon, Kenneth Ross was at
the Miraloma Liquor Store, not far from
the Twin Peaks Grocery, when defendant
entered. Boris Naumoff, who had owned
the store for about 30 years, asked
defendant, “Can I help you?” Defendant
replied, “I’m just looking.” He left
five minutes later. Ten minutes
thereafter, Ross also left the store.
He saw defendant standing outside,
making nervous, jerky movements and
looking up and down the street.

At
3:45 p.m., Sandy Bateman-Collins walked
into the Miraloma Liquor Store. Store
owner Naumoff was standing behind the
counter. He was handing money to a man,
but was dropping some of the money on
the floor. As the man began to leave,
Naumoff followed after him, mumbling, “A
guy can’t make a living any more.”
Bateman-Collins then heard three quick
shots, followed a few seconds later by a
fourth shot. She ducked behind a
counter.

Just
before the shooting, Charles Harris, who
was scheduled to work at the Miraloma
Liquor Store that evening, had entered
the store and saw store owner Naumoff
talking to a man who Harris assumed was
a customer. Sensing nothing amiss,
Harris walked toward the back room.
Hearing a scuffle, he turned and saw
Naumoff and the man face-to-face, with
Naumoff holding the man in a bear hug.
As Harris started to walk towards them,
he heard three quick shots, followed by
a fourth. He felt a pain in his leg,
saw that the man was holding a gun, and
ran to the back room.

Outside
the Miraloma Liquor Store, 13-year-old
Duffy Aceret saw a man run from the
liquor store with a gun in his hand. At
a lineup several days later, Aceret
identified defendant as the man he had
seen.

San
Francisco police officers, called to the
scene, found Naumoff’s body on the floor
of the Miraloma Liquor Store. He had
been shot once in the right chest and
twice in the heart. Dr. Boyd Stephens,
Chief Medical Examiner for the City of
San Francisco, described the two shots
to the heart as “near contact wounds,”
meaning that they had been fired inches
from their target.

That
evening, Laura Garnett-Young saw a car
stop outside her San Francisco home. A
man got out of the car and looked around;
he doffed his shirt and jacket, put them
in her garbage can, and drove away.
Garnett-Young wrote down the license
number of the car (119 TGL) and gave it
to the police. The police retrieved a
bloodstained shirt and jacket from
Garnet-Young’s garbage can. The blood
type matched that of victim Naumoff.

The
next evening, around 10 o’clock, San
Francisco Police Officer Michael Pearson
was on patrol with Officer Jeffrey
Morlock when he saw a Chevrolet Vega
automobile with a license number (119
TJL) that nearly matched the ones given
to the police by store owner Grant
Ridgeway and by Laura Garnet-Young. The
car’s headlights were off. Officers
Pearson and Morlock followed the car for
about five minutes while awaiting the
arrival of backup officers; the car took
an erratic route, often changing
direction. Pearson and Morlock stopped
the car and arrested defendant, the sole
occupant. They found a loaded .357-caliber
revolver in his waistband and a cocked
and loaded .380-caliber automatic pistol
in his coat pocket. According to
ballistics expert Richard Grzybowski,
the four bullets and the four spent
casings that the police had found at the
Miraloma Liquor Store were fired from
the pistol found in defendant’s pocket.

Officers
Pearson and Morlock took defendant to
the San Francisco Hall of Justice, where
he was interviewed, shortly before
midnight, by San Francisco Police
Inspectors Frank Falzon and Herman
Clark. Inspector Falzon advised
defendant of his rights under Miranda
v. Arizona (1966) 384 U.S.
436, and asked if he wanted to make a
statement. Defendant replied that he
wanted some time to think it over. Half
an hour later, he agreed to speak to the
officers. Defendant said that he went
to the liquor store, pulled a gun, and
told the man behind the counter, “It’s a
holdup.” The man gave him $20 or $30
but attacked him as he was trying to
leave, so defendant shot him. Defendant
claimed that he had been drunk and under
the influence of cocaine at the time.

B. Guilt Phase -- Defense
Case

Defendant
testified in his own defense. He
admitted killing store owner Naumoff but
denied that the killing occurred during
a robbery. After buying liquor and
cigarettes from Naumoff, defendant
discovered that Naumoff had short-changed
him by $30. He went back into the store
and confronted Naumoff, who muttered
under his breath but gave him the
correct change. As defendant started to
leave the store, someone grabbed him in
a bear hug and “slammed” him in the face.
Defendant thought his attacker was a
member of the Aryan Brotherhood, a
prison gang. While struggling to
escape, defendant pulled a pistol out of
his jacket and fired without aiming. He
acknowledged telling Inspectors Falzon
and Clark that he had shot Naumoff
during a robbery, but said he so only
because he thought that if he told them
what they wanted to hear, they would
protect him from an attack by the Aryan
Brotherhood by placing him in a separate
cell.

To
explain his fear of the Aryan
Brotherhood, defendant offered evidence
that while in prison he had been stabbed
in the back in a gang-related assault
possibly attributable to the Aryan
Brotherhood, a dangerous gang that had
killed many people. A former member of
the Aryan Brotherhood testified that for
years the gang had been trying to kill
defendant, and prison officials
testified that to protect defendant from
gang attacks California prison
authorities had transferred him at
various times to Kansas, Nevada, and
Washington to serve his sentence for a
crime he had committed in California.
Doctor Wesley Clark, a psychiatrist,
explained that persons who have suffered
violent trauma, such as the stabbing
defendant had experienced in prison,
often react with “hypervigilance” to
situations that appear to be threatening;
that is, they “become very agitated and
violent.”

To
rebut defendant’s testimony that the
killing of store owner Naumoff did not
occur during a robbery, the prosecution
offered evidence that defendant had
robbed two small markets in San
Francisco not far from the store where
Naumoff was killed. One of the
robberies occurred the day before the
Naumoff’s murder and the other took
place the morning of his death.

C. Prior Murder Special
Circumstance

The
parties stipulated that defendant had
suffered a prior conviction for murder
in 1965.

D. Penalty Phase --
Prosecution’s Case

Between
January 7 and January 15, 1965,
defendant committed a series of
robberies and assaults in Los Angeles
County. On the evening of January 7,
Franklin Boller was getting out of his
car in front of his home in West Covina
when defendant approached him, hit him
in the mouth with a rifle, and demanded
money. Boller gave defendant his wallet
and coin purse. Defendant then fired a
shot at Boller, grazing the side of his
head.

Later
that evening, Morris and Mildred Weiss
were returning to their San Gabriel home.
As Mildred got out of the car, defendant
approached and fatally shot her. He
then jumped into a waiting car and sped
away.

Just
before 12 o’clock that same night,
defendant entered a bar in Baldwin Park,
brandished a rifle, and said, “This is a
stickup.” He took money from the cash
register and the wallets of the
bartender and patron Archie Bolivar.
The bartender threw a beer bottle at
defendant, who fled.

On
January 15, 1965, defendant encountered
Frank Patti at MacArthur Park in Los
Angeles. The two of them agreed to go
to Patti’s hotel room. There, defendant
pulled a revolver, demanded money, and
told Patti to take his clothes off.
Patti attacked defendant, who fired
three shots and fled. Two shots hit
Patti in the stomach and the third
grazed his neck.

Defendant
was arrested on January 20, 1965 for the
assault on Patti. He gave two tape-recorded
statements in which he admitted
committing all of the crimes described
above and said he was trying to rob
Mildred Weiss when he shot and killed
her. He was convicted of four counts of
robbery, one count of attempted murder,
and one count of murder.

E. Penalty Phase -- Defense
Case

Defendant
was born in Virginia to a 15-year-old
woman and a man who had married her only
to avoid a charge of statutory rape.
Between his birth and his 11th birthday,
defendant had been placed with 5
different foster parents, at times
living with his mother or his
grandparents. At one foster home, he
was disciplined by getting whipped with
switches and having his head held under
water. Between the ages of four and six,
he was living with his mother, who took
him bar-hopping; his stepfather
physically abused him.

At
the age of 11, defendant was sent to the
Beaumont School for truant and runaway
boys in Virginia. Boys who misbehaved
were whipped up to 40 times with a thick
leather belt.

At
the age of 17, defendant stole a car and
was sentenced to adult prison, where he
was gang-raped by 4 older inmates.
Because of this experience, defendant
feigned insanity, resulting in
commitment to a prison psychiatric
facility.

Various
witnesses described defendant as having
become a religious man who felt remorse
for killing store owner Naumoff. While
serving his sentence for the 1965 murder
of Mildred Weiss, defendant had been an
exemplary prisoner who cooperated with
staff, performed valuable clerical
services, got along well with other
prisoners, and acted as a peacemaker to
ease tensions among inmates.

II.
Discussion

A. Double Jeopardy

Defendant
contends that because the appeal from
his initial conviction and death
sentence in this case was taken
automatically and over his opposition,
and because he filed a petition for
rehearing challenging this court’s
reversal of his conviction and death
sentence, double jeopardy principles
barred the prosecution from retrying him.
A summary of the pertinent facts follows.

As
explained at the outset, defendant
initially entered (against his
attorney’s advice) a plea of guilty to
the charge of capital murder and was
thereafter sentenced to death. His
death judgment was automatically
appealed to this court, under
subdivision (b) of section 1239 (hereafter
section 1239(b)).

Defendant
asked this court not to appoint counsel
to pursue the automatic appeal and to
dismiss it, arguing that under the state
and federal Constitutions he had a right
to waive the automatic appeal. When we
refused to do so, defendant petitioned
for a writ of habeas corpus in the
federal district court; he sought self-representation
and dismissal of the appeal. The court
denied the writ, and defendant appealed.
The United States Court of Appeals for
the Ninth Circuit upheld the district
court’s ruling, holding that section
1239(b), which bars a defendant who is
sentenced to death from waiving an
appeal, does not violate the federal
Constitution. (Massie v.
Sumner (9th Cir. 1980) 624 F.2d 72,
cert. den. (1981) 449 U.S.
1103.)

We
then reversed defendant’s conviction and
death sentence, holding that defendant’s
plea of guilty was invalid because
California law (§ 1018) does not permit
a defendant in a capital case to enter a
plea of guilty against the advice of
counsel. (Massie I, supra, 40
Cal.3d 620.) Defendant sought a
rehearing, asking us to reinstate his
conviction and death sentence, and
asserting that to retry him would
violate the constitutional prohibition
against double jeopardy. We denied the
petition for rehearing.

When
the prosecution attempted to retry
defendant for the murder of store owner
Naumoff, defendant entered a plea of
“once in jeopardy” (§ 1016, subd. 5),
contending that he had been placed in
jeopardy when he was first convicted of
capital murder, that this court had
reversed his conviction over his
objection, and that therefore the state
and federal prohibitions against double
jeopardy barred the state from again
prosecuting him for the same offense.
When the trial court rejected
defendant’s double jeopardy claim, he
raised the issue in a petition for writ
of habeas corpus in the federal district
court. The court denied the writ; the
denial was affirmed on appeal. (Massie
v. Hennessey (9th Cir. 1989)
875 F.2d 1386, cert. den.
(1990) 494 U.S. 1039.)

1. Federal constitutional
claim

The
Fifth Amendment to the federal
Constitution provides: “No person shall
. . . be subject for the same offense to
be twice put in jeopardy of life or limb
. . . .” The double jeopardy clause
protects criminal defendants in three
ways: “ ‘It protects against a second
prosecution for the same offense after
acquittal. It protects against a second
prosecution for the same offense after
conviction. And it protects against
multiple punishments for the same
offense.’ ” (Schiro v. Farley
(1994) 510 U.S. 222, 229, quoting
North Carolina v. Pearce
(1969) 395 U.S. 711, 717.) The second
of these protections -- the bar against
a second prosecution for the same
offense after conviction -- is at issue
here.

As
defendant points out, “the language of
the Double Jeopardy Clause protects
against more than the actual imposition
of two punishments for the same offense;
by its terms, it protects a criminal
defendant from being twice put into
jeopardy for such punishment. [Citation.]
That is, the Double Jeopardy Clause
‘prohibits merely punishing twice or
attempting a second time to punish
criminally, for the same offense.’
[Citation]” (Witte v. United
States (1995) 515 U.S. 389, 396,
original italics.) Defendant contends
that by seeking to retry him for murder
after reversal of his conviction, which
was based on a plea of guilty, the
prosecution was for the second time
trying to punish him criminally for the
same offense. But, as the Attorney
General points out, here defendant was
not placed in jeopardy when he initially
entered his plea of guilty to the charge
of murder with special circumstances,
because the plea was invalid. As we
mentioned earlier, California law does
not allow a capital defendant to plead
guilty against the advice of counsel, as
occurred here. (Massie I, supra,
40 Cal.3d at p. 625.)

Ordinarily,
jeopardy attaches when a defendant
enters a plea of guilty, or when the
court imposes sentence following the
entry of that plea. (See, e.g.,
Dawson v. United States (7th
Cir. 1996) 77 F.3d 180, 182; United
States v. Faber (9th Cir.
1995) 57 F.3d 873, 875; United States
v. Santiago Soto (1st Cir.
1987) 825 F.2d 616, 618-619; United
States v. Felton (3rd. Cir.
1985) 753 F.2d 276, 278; United
States v. Cambindo Valencia
(2nd Cir. 1979) 609 F.2d 603, 637.)3
Jeopardy does not attach when the plea
is invalid, however. “[A]n unlawful
guilty plea is null and therefore does
not bar a second prosecution for the
same offense. Thus, if a court lacks
jurisdiction to accept defendant’s plea
or if the plea violates any statute,
then the plea and sentence will not bar
reprosecution.” (22 C.J.S. (rev. 1989)
Criminal Law, § 223, p. 272.) We know
of no authority to the contrary. The
cases that defendant has cited are not
on point, for none involved a void plea
of guilty.

This
case is analogous to Cox v.
State (Fla. 1982) 412 So.2d 354.
There, the trial court, over the
prosecutor’s objection, accepted a
defendant’s plea of guilty to a lesser
offense included within the crime
charged. On an appeal by the
prosecution, the Florida Supreme Court
invalidated the guilty plea, holding
that under Florida law the trial court
could not accept such a plea without the
prosecutor’s consent. The court also
held that because the guilty plea was
invalid, jeopardy had not attached, and
the state could again prosecute the
defendant without violating the federal
Constitution’s prohibition against
double jeopardy. (Id. at
pp. 355-356; see also Bayless v.
United States (8th Cir. 1945) 147
F.2d 169, 170.) Here, too, as explained
earlier, defendant’s guilty plea was
invalid. Thus, as in Cox,
jeopardy did not attach upon entry of
the invalid guilty plea. Therefore, the
prosecution could try defendant for the
murder of store owner Naumoff.

Defendant
insists that the trial court did have
the power to accept his plea of guilty
to the charge of capital murder. He
asserts that section 1018, which bars a
trial court from accepting a guilty plea
in a capital case over the advice of
counsel, “is unconstitutional as a
violation of the Sixth Amendment right
to control one’s own defense, the
Fourteenth Amendment’s Equal Protection
clause, and their respective California
law counterparts.” We rejected this
contention in People v. Chadd
(1981) 28 Cal.3d 739, 747-754, and we
see no reason to reconsider the issue.
Defendant also maintains that in his
earlier appeal, Massie I, supra,
40 Cal.3d 620, we should have found
section 1018 inapplicable because his
trial counsel consented in court to the
plea of guilty, even though the plea was
against counsel’s advice. We rejected
that contention in Massie I,
supra, and we do not reconsider it
here.

2. State constitutional and
statutory claims

Defendant
further contends that by retrying him
for Naumoff’s murder, the state also
violated the prohibitions against double
jeopardy contained in the state
Constitution and statutory provisions.
As he points out, article I, section 15
of the state Constitution provides,
“Persons may not twice be put in
jeopardy for the same offense.” The
California Penal Code contains similar
provisions. (See § 687 [“No person can
be subjected to a second prosecution for
a public offense for which he has once
been prosecuted and convicted or
acquitted.”]; § 1023 [“When the
defendant is convicted or acquitted or
has been once placed in jeopardy upon an
accusatory pleading, the conviction,
acquittal, or jeopardy is a bar to
another prosecution for the offense
charged in such accusatory pleading
. . . .”].)

As
discussed earlier, when, as in this
case, a defendant has entered an invalid
guilty plea, the federal Constitution
does not bar a second prosecution. We
see no reason why a similar rule should
not apply to the double jeopardy
prohibitions contained in the state’s
Penal Code and Constitution. As a
leading treatise on California law has
pointed out: “Where a guilty plea is
properly vacated, whether on the
defendant’s motion or otherwise, the
double jeopardy prohibition does not
prevent a trial on the offense charged.”
(1 Witkin & Epstein, Cal. Criminal Law
(2d ed. 1988) Defenses, § 302, p. 348,
italics added; see also People
v. Clark (1968) 264 Cal.App.2d
44, 47 [“In our view double jeopardy no
more follows the vacation of an
erroneously accepted plea than it does
an instance of mistaken identity,
incompetency, corruption, or mistrial.”].)

3. Jurisdiction to hear
appeal in Massie I,
supra, 40 Cal.3d 620

Defendant
contends that following our reversal of
his convictions and death sentence in
Massie I, supra, 40 Cal.3d 620, the
prosecution was precluded from further
prosecuting him for the same capital
murder. He asserts that we were
“without authority” to hear the appeal
of his 1979 guilty plea and death
sentence, and that therefore the
subsequent trial violated the bar
against double jeopardy. He presents
five bases for this contention: (1)
This court should have honored his
request to waive the appeal; (2) the
appeal was barred because his counsel
failed to obtain a certificate of
probable cause; (3) by entertaining the
appeal, this court violated defendant’s
constitutional rights to control his
defense, to due process, and to equal
protection of the law; (4) the appeal
was barred by the rule against advisory
opinions; and (5) by entertaining the
appeal, this court created an
irreconcilable ethical conflict for the
attorney appointed to represent
defendant on appeal.

It
is difficult to see how this argument
could benefit defendant. If we were to
decide here that in Massie I,
supra, 40 Cal.3d 620, we should have
honored defendant’s request to dismiss
the automatic appeal, the guilty plea
that formed the basis for the robbery
and capital murder convictions in that
case would still be invalid because, as
explained earlier, the plea was
impermissible under California law and
therefore the trial court lacked the
power to accept it. Moreover, even if
that guilty plea were to be reinstated,
so would defendant’s sentence of death.
In any event, we conclude that this
court had the power to set aside the
robbery and murder convictions arising
from defendant’s 1979 plea of guilty.

a. Defendant’s request
to waive his appeal

Defendant
faults this court for not allowing him
to waive the automatic appeal in
Massie I, supra, 40 Cal.3d 620,
following his guilty plea to capital
murder. He acknowledges that we
rejected an identical contention in
People v. Stanworth (1969) 71
Cal.2d 820. He argues, however, that
Stanworth was wrong and should be
overruled. We disagree.

Section
1239(b) provides that an appeal of a
sentence of death “is automatically
taken” to this court. As we explained
in Stanworth: This statute
“imposes a duty upon this court ‘to make
an examination of the complete record of
the proceedings had in the trial court,
to the end that it be ascertained
whether defendant was given a fair trial.’
. . . [¶] . . . We cannot avoid or
abdicate this duty merely because
defendant desires to waive the right
provided for him.” (People v. Stanworth,
supra, 71 Cal.2d at p. 833.)

In
taking a contrary view, defendant argues
that the Legislature never intended to
prevent capital defendants from waiving
the right to an appeal. In support, he
cites to a legislative committee report
issued in 1935. This report was not
discussed in People v. Stanworth,
supra, 71 Cal.2d 820, and defendant
asks us to take judicial notice of it.
We do so.4

In
1935, condemned inmate Rush Griffin was
executed before his appeal had been
heard. Griffin’s attorney had filed a
notice of appeal in the superior court,
but the clerk’s transcript of the trial
proceedings was not forwarded to this
court until three days after
Griffin’s execution. At that time, it
was customary for the clerk of this
court to notify the warden of San
Quentin prison by letter that an appeal
was pending, but because the superior
court had not informed this court that
the defendant had appealed, no such
letter was written. The superior court
sent the warden a letter mentioning the
appeal, but the warden overlooked the
letter and carried out Griffin’s
execution. (Special Com. to Investigate
the Execution of Rush Griffin, Rep. (May
28, 1935) Sen. J. (1935 Reg. Sess.) p.
2427 (hereafter Special Committee Report).)

The
special legislative committee that
looked into the matter concluded that
“the existing procedures of law are
woefully inadequate with reference to
the procedure for appeal of cases
involving the death penalty.” (Special
Com. Rep., supra, p. 2428.) The
committee recommended that legislation
be enacted providing, among other things,
for “an automatic appeal . . . in all
cases in which the penalty of death is
imposed” and that “the date of execution
be set by the trial judge upon the
receipt by him of the Appellate Court’s
order affirming the death penalty, and
not as now provided when sentence is
pronounced by the trial judge.” (Ibid.)
Legislation to so amend section 1239 was
introduced in the state Senate on May
28, 1935, the same day on which the
Special Committee Report was recorded in
the Senate Journal. Both the Senate and
the Assembly swiftly approved the
proposed amendment; seven weeks later,
the Governor signed it into law.

The
holding in People v.Stanworth,
supra, 71 Cal.2d 820, that a capital
defendant may not waive the automatic
appeal provided by section 1239(b) is
consistent with the legislative purpose
reflected in the Special Committee
Report just discussed. To prevent an
execution before determination of
an appeal, the committee recommended
that legislation be enacted requiring
that “all cases in which the
death penalty is imposed” be
automatically appealed to this court. (Special
Com. Rep., supra, p. 2428,
italics added.) Section 1239(b), which
expressly provides for an automatic
appeal in every capital case, implements
this recommendation. If, as defendant
contends, the Legislature’s intent was
to permit a condemned inmate to waive an
appeal to a death judgment, it could
easily have said so. It did not.

We
decided People v. Stanworth,
supra, 71 Cal.2d 820, almost 30
years ago. Since then, the Legislature
has reenacted section 1239 (Stats.1982,
ch. 917, § 4, p. 3355) and has amended
it on two other occasions (Stats.1975,
ch. 1125, § 3, p. 2744; Stats.1988, ch.
551, § 1, p. 2013), but it has never
altered section 1239’s requirement that
“[w]hen . . . a judgment of death is
rendered, an appeal is automatically
taken by the defendant.” The quoted
phrase forms the basis for
Stanworth’s holding that an appeal
of a judgment of death may not be waived.
“ ‘When a statute has been construed by
the courts, and the Legislature
thereafter reenacts that statute without
changing the interpretation put on that
statute by the courts, the Legislature
is presumed to have been aware of, and
acquiesced in, the courts’ construction
of that statute.’ ” (People v. Ledesma
(1997) 16 Cal.4th 90, 100-101; see
also Robinson v. Fair
Employment & Housing Com. (1992) 2
Cal.4th 226, 235 [“In the absence of
legislative history suggesting otherwise,
there is a very strong presumption that
the Legislature intends that the same
construction be given statutory language
which has been readopted without change.”].)

b. Requirement of a
certificate of probable
cause following a guilty
plea

Defendant
contends that this court lacked
jurisdiction to hear his 1979 automatic
appeal in Massie I, supra, 40
Cal.3d 620, because it arose from a plea
of guilty and the trial court did not
issue a certificate of probable cause
as, defendant contends, is required
under section 1237.5.

Section
1237.5 requires a defendant to obtain
from the trial court a certificate of
probable cause when appealing from a
conviction resulting from a plea of
guilty. In 1979, when defendant entered
his plea of guilty in this case, section
1237.5 provided in relevant part: “No
appeal shall be taken by [a] defendant
from a judgment of conviction upon a
plea of guilty or nolo contendere . . .
except where: [¶] (a) The defendant
has filed with the trial court a
written statement, executed under
oath or penalty of perjury[,] showing
reasonable . . . grounds going to the
legality of the proceedings; and [¶]
(b) The trial court has executed and
filed a certificate of probable cause
for such appeal with the county clerk.”
(Italics added.) Defendant points out
that he did not file with the trial
court the requisite written statement
and the trial court did not issue a
certificate of probable cause.
Accordingly, he argues, this court
lacked jurisdiction to entertain his
appeal in Massie I, supra, 40
Cal.3d 620.

Defendant
acknowledges that to require a defendant
sentenced to death to obtain a
certificate of probable cause would be
inconsistent with section 1239(b), which,
as previously explained, provides that a
judgment of death results in an
automatic appeal “without any action
by [the defendant] or his . . . counsel.”
(Italics added.) Defendant argues,
however, that because section 1237.5’s
“certificate of probable cause”
requirement was enacted more recently
than section 1239(b)’s automatic appeal
provision, section 1237.5 controls. He
invokes the principle of statutory
construction that “in the event of a
conflict between two statutes, effect
will be given to the more recently
enacted law.” (Bledstein v.
Superior Court (1984) 162 Cal.App.3d
152, 160.) Principles of statutory
construction guide us in achieving our
ultimate task, which is to ascertain the
Legislature’s intent. (People
v. Fuhrman (1997) 16 Cal.4th 930,
937.) As we explain below, after
examining the purpose of section 1237.5
we conclude that the Legislature did not
intend that provision to apply to
appeals from judgments of death based on
a plea of guilty.

“The
purpose for requiring a certificate of
probable cause is to discourage and weed
out frivolous or vexatious appeals
challenging convictions following guilty
and nolo contendere pleas. [Citations.]
The objective is to promote judicial
economy ‘by screening out wholly
frivolous guilty [and nolo contendere]
plea appeals before time and money is
spent preparing the record and the
briefs for consideration by the
reviewing court.’ [Citations.]” (People
v. Panizzon (1996) 13 Cal.4th 68,
75-76.) This goal is inapplicable to an
appeal from a sentence of death because,
as we have explained, the Legislature
has imposed on this court a duty to
examine the record in all death
sentence cases to determine whether the
proceedings leading to the conviction
and sentence were conducted fairly. (People
v. Stanworth, supra, 71 Cal.2d at
p. 833.) We therefore reject
defendant’s contention that in enacting
section 1237.5, which generally requires
a certificate of probable cause in cases
involving a plea of guilty or nolo
contendere, the Legislature intended
that requirement also to apply to
automatic appeals in capital cases.

c. Alleged violation of
defendant’s state and
federal constitutional
rights

Defendant
contends that if, as we held in
People v. Stanworth, supra,
71 Cal.2d at pp. 832-834, section
1239(b) bars this court from dismissing,
even at a defendant’s request, an
automatic appeal from a judgment of
death, it is unconstitutional because it
violates a defendant’s “right to control
his defense.” He asserts that this
right arises from the provisions of the
state and federal Constitutions
entitling a criminal defendant to the
assistance of counsel. (U.S. Const.,
Amend. VI; Cal. Const., art. I, § 15.)

Defendant
relies primarily on Faretta v.
California (1975) 422 U.S. 806,
which holds that a criminal defendant
has the right of self-representation at
trial. But, as we noted in Massie I,
“ ‘Faretta does not purport
. . .’ . . . to abrogate the rule . . .
that a capital defendant has no right to
waive his automatic appeal.” (Massie
I, supra, 40 Cal.3d at p. 624.)

Defendant
points to isolated comments in federal
cases that were decided after our
decision in Massie I and state
that a defendant has the right to decide
whether to appeal. (See Jones v.
Barnes (1983) 463 U.S. 745, 751
[“[T]he accused has the ultimate
authority to make certain fundamental
decisions regarding the case, as to
whether to plead guilty, waive a jury,
testify in his own behalf, or take an
appeal . . . .”(Italics
added.)]; Marrow v. United
States (9th Cir. 1985) 772 F.2d 525,
530 [“The decision whether to appeal
‘must be the defendant’s own choice,’
. . . even after a guilty plea
. . . .”].) We do not view these
passing remarks, taken out of the
context in which they arose in
noncapital cases, as establishing a rule
that a capital defendant who has been
sentenced to death has a constitutional
right to waive an automatic appeal.

Defendant
relies on a series of recent cases in
which we have held that at trial a
capital defendant may elect self-representation
and present no mitigating evidence on
his own behalf, notwithstanding
California’s interest in assuring a
“reliable” penalty determination in
capital cases. (See People v. Bradford
(1997) 15 Cal.4th 1229, 1363-1373;
People v. Stansbury (1993)
4 Cal.4th 1017, 1062-1064; People
v. Diaz (1992) 3 Cal.4th 495,
566; People v. Howard
(1992) 1 Cal.4th 1132; People v. Edwards
(1991) 54 Cal.3d 787, 809-811;
People v. Lang (1989) 49
Cal.3d 991, 1029-1030.) These cases, he
argues, demonstrate that the state’s
interest in the reliability of a capital
trial does not “outweigh” a defendant’s
right to control the defense. No
weighing, however, is required.
Faretta v. California, supra,
422 U.S. 806, does not grant defendants
the right to “control” their appeals,
either by electing self-representation (People
v. Scott (1998) 64 Cal.App.4th
550 [no right of self-representation on
appeal]; In re Walker (1976) 56
Cal.App.3d 225, 228-229 [same]), by
electing which issues to raise (see
People v. Clark (1992) 3
Cal.4th 41, 173 [court will not accept
in propria persona filings in automatic
appeal]), or (as urged by defendant) by
waiving an automatic appeal.

Defendant
further contends that § 1239(b), which
prohibits this court from granting
requests by defendants sentenced to
death to dismiss their automatic appeals,
violates his right to equal protection
of the laws, as guaranteed by the
Fourteenth Amendment to the federal
Constitution and article I, section 7 of
the
California Constitution. We disagree.
As we have explained, “the first
prerequisite to such a claim is a
showing that ‘the state has adopted a
classification that affects two or more
similarly situated groups in an unequal
manner.’ ” (People v. Andrews
(1989) 49 Cal.3d 200, 223, quoting
In re Eric J. (1979) 25 Cal.3d
522, 530, italics omitted.) Section
1239(b) applies to individuals who, like
defendant, have been sentenced to death.
Defendant fails to identify any other
similarly situated group that is
affected differently by section 1239(b).

d. Rule against advisory
opinions

Defendant
argues that because the automatic appeal
in Massie I, supra, 40 Cal.3d
620, was taken against his wish, it did
not present a case or controversy ripe
for decision and therefore, lacking the
power to render advisory opinions, we
could not consider the appeal. He
relies on Neary v. Regents of
University of California (1992) 3
Cal.4th 273, 284, in which we reiterated
the “well-established rule” that we
should “avoid advisory opinions.” Our
decision in Massie I, supra, 40
Cal.3d 620, however, was not an advisory
opinion, because its effects were real,
not theoretical: it reversed
defendant’s robbery and murder
convictions as well as his sentence of
death.

Moreover,
our policy against advisory
opinions does not deprive us of the
power to hear an appeal
notwithstanding the appealing party’s
request that it be dismissed. There is
a “ ‘well-established line of judicial
authority recognizing an exception to
the mootness doctrine, and permitting
the court to decline to dismiss a case
rendered moot by stipulation of the
parties where the appeal raises issues
of continuing public importance.’ ” (State
of Cal. ex rel. State Lands Com.
v. Superior Court (1995) 11
Cal.4th 50, 61.) Defendant’s
convictions and death sentence were
properly before us in
Massie I, supra,
40 Cal.3d 620, because they came within
the automatic appeal provision of
section 1239(b). We therefore had the
power to hear the appeal notwithstanding
defendant’s request to dismiss it.

e. Alleged conflict of
interest

Defendant
asserts that, by prohibiting a condemned
inmate from waiving an automatic appeal,
section 1239(b) creates “an
irreconcilable ethical conflict for
defendant’s appointed counsel.” He
points to the ethical duty of an
attorney to follow the client’s wishes
regarding the objectives of the
representation. (See ABA Model Rules
Prof. Conduct, rule 1.2(a) [“A lawyer
shall abide by a client’s decisions
concerning the objectives of the
representation.”].) When a condemned
inmate wishes to give up the right to an
automatic appeal, defendant argues,
section 1239(b) places the defense
attorney in an impossible situation. As
appellate counsel, the attorney is
obligated to seek out grounds for
reversal. (See generally, In re
Smith (1970) 3 Cal.3d 192, 197;
People v. Feggans (1967) 67
Cal.2d 444, 447.) Yet the attorney is
also under an ethical duty to abide by
the client’s wish to seek dismissal of
the appeal, thus resulting in the
affirmance of the conviction and the
sentence of death. As defendant puts it:
“To require that the attorney serve two
masters, both the client and the state’s
abstract interest in avoiding the
arbitrary and capricious imposition of
the death penalty, is to deprive the
capital defendant of his Sixth Amendment
right to counsel unfettered by conflicts
of interest.”

We find
no conflict of interest. It is true
that an attorney “must always respect
and defer to those decisions properly
reserved to his client.” (Davis
v. State Bar (1983) 33 Cal.3d
231, 238.) But a defendant sentenced to
death is not free to decide whether or
not to appeal, because the Legislature
has decreed that there be an
automatic appeal in every capital
case (§ 1239(b)) that cannot be waived.
Contrary to defendant’s assertion,
defense counsel has no ethical
obligation to comply with a capital
defendant’s request to abandon the
appeal, for to do so is, as just
explained, not permitted.

At
the time of his initial trial in 1979,
defendant pleaded guilty to the robbery
and murder of store owner Naumoff. On
defendant’s automatic appeal, this court
held that both guilty pleas were
invalid and reversed both
convictions. We reasoned that defendant
was not permitted to plead guilty to the
robbery charge against the advice of his
attorney because, under the felony-murder
rule, the elements of the robbery
charge were essential elements of the
murder for which defendant was
sentenced to death. We pointed out that
unless we reversed the robbery
conviction, that conviction “ ‘would be
conclusive on retrial of the murder
count and the prosecution would need
only prove the fact of the killing in
its perpetration in order to obtain a
new conviction of first degree murder.’ ”
(Massie I, supra, 40 Cal.3d at p.
625, quoting People v. Chadd,
supra, 28 Cal.3d at p.755;
People v. Ballentine
(1952) 39 Cal.2d 193, 197.)

Defendant
contends that his trial for murder,
following his plea of guilty to
robbery (Massie I, supra, 40
Cal.3d 620), impermissibly placed him in
double jeopardy. He points out that the
murder and the robbery of Naumoff were
the “same offense” for double jeopardy
purposes, because, to establish
defendant’s guilt of murder under the
felony-murder rule, the prosecution had
to prove defendant’s commission of the
robbery. (See United States v.
Dixon (1993) 509 U.S. 688, 698
[“[F]or double jeopardy purposes, ‘the
crime generally described as felony
murder’ is not ‘a separate offense
distinct from its various elements.’ ”];
Harris v. Oklahoma (1977)
433 U.S. 682 [double jeopardy clause
barred robbery prosecution of a
defendant previously tried for felony
murder based on the same robbery].) But,
as explained in parts II.A.1 and II.A.2,
ante, jeopardy does not attach to
an invalid plea of guilty. Defendant’s
guilty plea to robbery, which, under the
felony-murder rule, relieved the
prosecution from having to prove some of
the elements of the capital murder with
which defendant was also charged, was
invalid because the plea was entered
against defense counsel’s advice. As we
mentioned earlier, California law
prohibits such a plea in a capital
case. (§ 1028.) Accordingly, there is
no merit to defendant’s claim that his
trial violated the constitutional
prohibition against double jeopardy.

Defendant
also argues that section 1239(b)’s
automatic appeal provision pertains only
to his murder conviction, not to
convictions for other crimes charged in
the same accusatory pleading. He
asserts that in Massie I,
supra, 40 Cal.3d 620, we lacked
jurisdiction to reverse his robbery
conviction and that therefore the trial
of the murder, the “same offense” as the
robbery for double jeopardy purposes (United
States v. Dixon, supra, 509
U.S. at p. 698), violated the
prohibition against double jeopardy.

Assuming
for the sake of argument that the
doctrine of law of the case does not
dispose of this contention,5
we find it to be without merit. At the
time of defendant’s 1979 convictions for
robbery and capital murder, section
1239(b) provided: “When upon any plea a
judgment of death is rendered, an appeal
is automatically taken by the defendant
without any action by him or his counsel.”
Nothing in that language limits the
scope of a defendant’s automatic appeal
to the crime or crimes for which the
defendant was sentenced to death. We
therefore construe that provision as
requiring an automatic appeal to this
court of the entire judgment,
thus including convictions for
noncapital as well as capital crimes.

B. Cruel and Unusual
Punishment

Defendant
contends that to execute him after more
than 16 years of confinement on death
row would be cruel and unusual
punishment, in violation of the Eighth
Amendment to the federal Constitution.
He notes that two justices of the United
States Supreme Court have taken the view
that “the importance and novelty of the
question . . . are sufficient to warrant
review” by that court. (Lackey v.Texas (1995) 514 U.S. 1045 (mem.
opn. by Stevens, J., on denial of cert.;
accord, Breyer, J.).)

We
rejected a similar claim in People v.Hill
(1992) 3 Cal.4th 959. (See also
People v.Frye (1998) 18
Cal.4th 894, 1030-1031.) Defendant,
however, insists that in Hill we
considered only whether the delay itself
amounted to cruel and unusual punishment,
whereas his argument raises a slightly
different point: that the cruel and
unusual punishment arises from the
execution that occurs after the delay.
Defendant misconstrues Hill,
which held that the delay inherent in
the automatic appeal process “is not a
basis for finding that either the
death penalty itself or the process
leading to it is cruel and unusual
punishment.” (People v.Hill,
supra, 3 Cal.4th at p. 1016, italics
added.) Defendant also maintains that
his case is distinguishable from Hill
because he, unlike the defendant in
Hill, made every possible effort to
block consideration of his initial
appeal and thus to speed up the
appellate process. Our decision in
Hill, however, was not based on the
defendant’s failure to ask for dismissal
of his appeal. Rather, we concluded
that substantial delay in the execution
of a sentence of death is inherent in
this state’s automatic appeal process,
but that this delay is a “constitutional
safeguard,” not a “constitutional defect.”
(Id. at p. 1014.) An execution
following such delay is not cruel and
unusual punishment. Our decision in
Hill compels us to reject
defendant’s claim of cruel and unusual
punishment in this case.

C. Admission of Defendant’s
Confession

Before
trial, defendant moved to suppress his
tape-recorded confession to the murder
of store owner Naumoff. The trial court
denied the motion. At the suppression
hearing the following testimony was
presented.

Defendant
was arrested around 10 p.m. on January
4, 1979, the day after Naumoff’s murder.
The arresting officers took him to the
police station in the San Francisco Hall
of Justice. In an interview room,
Homicide Inspector Frank Falzon, in the
presence of Inspector Herman Clark,
advised defendant of his rights under
Miranda v.Arizona, supra,
384 U.S. 436, and asked if defendant
wished to make a statement. According
to Falzon, defendant replied that his
“head wasn’t clear”; he wanted food and
some time to think about whether he
wanted to make a statement. The
officers gave defendant coffee and a
sandwich. They told him that if he
would not consent to a search of his car
and his residence, they would seek a
search warrant. Defendant then gave a
written consent to the search.

The
officers then left defendant alone in
the interview room for 20 to 40
minutes. When they returned, defendant
said he would talk to them.

Inspector
Falzon turned on a tape recorder. He
again read defendant his Miranda
rights and again asked if defendant
wanted to make a statement. Defendant
responded, “I will talk to you only on
one condition.” He then explained that
people within the prison system were
trying to kill him, and that he feared
for his safety. He therefore wanted to
be housed in a separate jail cell.
Inspector Falzon replied, “I believe
that can be accommodated for you sir.”
When defendant insisted on a “guarantee”
of a single cell, Falzon said that he
and Inspector Clark did not run the jail,
but that they would tell the sheriff
that defendant’s life was in danger, and
that they would “do everything within [their]
power” to get defendant a separate cell.
Defendant then asked, “Will you also not
publish what I’m saying to you now?”
Falzon replied that defendant’s
statement would not be made public
before defendant’s trial, but that the
tape recording would probably be played
at the trial. Defendant then agreed to
talk to the officers. He admitted
shooting store owner Naumoff after
robbing him. Defendant concluded his
statement by saying that he had agreed
freely and voluntarily to talk to the
officers.

At
the suppression hearing, however,
defendant claimed that he had falsely
confessed to Inspectors Falzon and Clark
because they “intimidated or threatened”
him. He said that Inspector Clark told
him, before the tape recorder was turned
on, that it was in defendant’s “best
interest” to talk to the police.
According to defendant, Clark said that
defendant needed to be placed in
protective custody for his safety, and
that if defendant refused to speak to
the officers he “wasn’t going to get the
protective custody.” Testifying in
rebuttal, Inspector Clark denied making
these statements.

For
reasons given below, we reject
defendant’s contention that his
confession was involuntary because it
was induced by promises of leniency, and
that it therefore should have been
suppressed.

The
Fourteenth Amendment to the federal
Constitution and article I, section 15,
of the state Constitution bar the
prosecution from using a defendant’s
involuntary confession. (People
v. Jones (1998) 17 Cal.4th 279,
296.) The federal Constitution requires
the prosecution to establish, by a
preponderance of the evidence, that a
defendant’s confession was voluntary. (Lego
v. Twomey (1972) 404 U.S.
477, 489.) The same is now true under
California law as a result of an
amendment to the state Constitution
enacted as part of Proposition 8, a 1982
voter initiative. (See Cal. Const., art.
I, § 28, subd. (d); People v. Markham
(1989) 49 Cal.3d 63, 71.) At the
time of the murder here, however, state
law required the prosecution to
establish the voluntariness of a
confession beyond a reasonable doubt. (People
v. Memro (1995) 11 Cal.4th 786,
826.) That law therefore governs this
case.

Under
both state and federal law, courts apply
a “totality of circumstances” test to
determine the voluntariness of a
confession. (Withrow v.
Williams (1993) 507 U.S. 680,
693-694; People v. Williams
(1997) 16 Cal.4th 635, 660.) Among
the factors to be considered are “ ‘the
crucial element of police coercion [citation];
the length of the interrogation [citation];
its location [citation]; its continuity’
as well as ‘the defendant’s maturity [citation];
education [citation]; physical condition
[citation]; and mental health.’ ” (People
v. Williams, supra, 16 Cal.4th at
p. 660.) On appeal, the trial court’s
findings as to the circumstances
surrounding the confession are upheld if
supported by substantial evidence, but
the trial court’s finding as to the
voluntariness of the confession is
subject to independent review. (People
v. Jones, supra, 17 Cal.4th 279;
People v. Memro, supra, 11
Cal.4th at p. 826.) In determining
whether a confession was voluntary,
“[t]he question is whether defendant’s
choice to confess was not ‘essentially
free’ because his will was overborne.”
(People v. Memro, supra,
11 Cal.4th at p. 827.)

After
an independent review of the record, we
agree with the trial court that, under
the totality of circumstances,
defendant’s confession was voluntary.
True, before he confessed, defendant
asked Inspector Falzon to promise that
he would be placed in a separate cell.
But Falzon never made such an express
promise; rather, he explained to
defendant that he and Inspector Clark
did not “run the San Francisco City Jail,”
but that they would try to have him
placed in a separate cell. More
importantly, Inspector Falzon never told
defendant that any effort to secure
defendant a separate cell would be
contingent on defendant’s decision
to give a statement. As to defendant’s
claim that Inspector Clark threatened
that defendant would not be placed in
protective custody if he refused to make
a statement, the trial court rejected
that claim. That finding has ample
support in Inspector Clark’s testimony
denying that he had made such a threat.

D. Pretrial Publicity

Defendant
asserts that adverse and prejudicial
pretrial publicity, created in part by
statements that San Francisco Police
Inspector Frank Falzon gave to the
media, denied him a fair trial.

On September 9,
1988, two months before the start of
jury selection in defendant’s case, a
San Francisco television station
broadcast a program entitled Life After
Death Row. Appearing on the program was
Inspector Falzon. The program’s
narrator explained that before 1972
defendant was convicted of murder and
sentenced to death, that after his death
sentence was invalidated by a court
decision he was released on parole, and
that shortly thereafter he was charged
with killing store owner Naumoff.

The narrator also
mentioned that defendant had pleaded
guilty to murdering Naumoff and had
again been sentenced to death, but that
because of a “legal loophole” the
conviction was overturned. Inspector
Falzon said during the broadcast that
defendant had killed once before, had
been paroled, and had killed again. He
added that the prosecution had done
nothing wrong in connection with
defendant’s initial conviction for
killing Naumoff, that the taxpayers
should not be “stuck” with the cost of a
retrial, and that defendant had “learned
how to beat the criminal system.”
Falzon played portions of defendant’s
tape-recorded confession. Also
appearing on the program were defendant
and his attorney, each of whom asserted
defendant’s innocence.

On
the morning before the program was
broadcast, columnist Herb Caen of the
San Francisco Chronicle mentioned the
upcoming telecast in his column. Caen
wrote that defendant’s conviction for
killing Naumoff had been “reversed by [former
Chief Justice] Rose Bird,” and he quoted
Inspector Falzon’s statement, “This guy
used to say he wanted to die. I hope he
gets his wish.”

In
October 1988, a voter information
pamphlet was distributed to all the
voters in the State of California. On
the ballot that November was Proposition
89, an initiative proposing to give the
Governor of California the power to
overturn decisions of the parole board.
The argument in favor of the initiative
mentioned that defendant was sentenced
to death for murder in 1965, that his
death sentence was overturned on appeal,
that he was released on parole in 1978,
and that he killed a “store clerk” in
1979.

On
November 21, 1988, while jury selection
was underway, an article entitled,
Jury Selection Begins in Retrial of
Death Row Survivor, appeared in
another local newspaper, the San
Francisco Examiner. The story mentioned
defendant’s 1965 conviction for murder,
his release on parole, his arrest,
conviction, and death sentence for
killing San Francisco store owner
Naumoff, and this court’s reversal of
defendant’s conviction for the murder of
Naumoff.

On
three occasions, defendant asked the
trial court to dismiss the charges
against him, contending that the
pretrial publicity made it impossible
for him to have a fair trial, and that
Inspector Falzon’s statements to the
news media constituted “prosecutorial
misconduct” because they increased the
likelihood that any jury selected to try
his case would be tainted by prejudicial
publicity. He also made a motion for a
change of venue. The trial court denied
the motions. Defendant now argues that
even if the court properly denied his
motions to dismiss the charges, it
should at least have granted his less
drastic request for a change of venue.
We disagree.

A
trial court should grant a criminal
defendant’s motion for change of venue
if “there is a reasonable likelihood
that a fair and impartial trial cannot
be had in the county.” (§ 1033, subd.
(a).) Among the factors to be
considered are “ ‘the nature and gravity
of the offense, the size of the
community, the status of the defendant,
the popularity and prominence of the
victim, and of course the nature and
extent of the publicity.’ ” (People
v. Sanders (1995) 11 Cal.4th 475,
505.) A denial of a motion for change
of venue will be upheld on appeal unless
the record shows both that it was
“ ‘reasonably likely that a fair trial
court could not be had at the time the
motion was made,’ ” and that it was
“ ‘reasonably likely a fair trial was
not in fact had.’ ” (People v. Dennis
(1998) 17 Cal.4th 468, 523.)

The
first factor -- the nature and gravity
of the offense -- weighed in favor of a
change of venue, as defendant was
charged with a capital crime only a
short time after his release on parole
following a long sentence for murder.
This factor, however, was not
dispositive. (See, e.g., People
v. Dennis, supra, 17 Cal.4th at
p. 523; People v. Williams,
supra, 16 Cal.4th at p. 655;
People v. Sanders, supra, 11
Cal.4th at p. 506.) The second factor
-- the size of the community -- weighed
heavily against a change of venue,
because San Francisco, where store owner
Naumoff was killed, is a heavily
populated urban center. Also weighing
against a change of venue were the third
and fourth factors -- the prominence of
the defendant and the victim -- for the
record contains no evidence that here
either defendant or the victim was
widely known in the community.

With
respect to the fifth and final factor --
the nature and extent of the publicity
-- the media reports about the case
contained highly prejudicial information:
the death sentence that defendant
received for the 1965 murder, and the
death sentence, later reversed on
appeal, that defendant initially
received for killing store owner Naumoff.
The record, however, contains no
evidence that a substantial portion of
the community was aware of these reports.

The
responses given by the prospective
jurors at voir dire provide further
evidence that the pretrial publicity had
no prejudicial effect on defendant’s
right to a trial by a fair and impartial
jury. Two prospective jurors mentioned
that they had seen the television
program in question, and one recalled
reading about defendant in the ballot
pamphlet; all three were excused.
Several prospective jurors recalled
hearing about the killing when it first
occurred in 1979, but none of them
remembered anything about defendant or
his prior criminal history. A few
others had read columnist Herb Caen’s
statement in the San Francisco Chronicle
that he had been subpoenaed to testify
in connection with one of defendant’s
motions to dismiss the case because of
pretrial publicity. (Caen did not
mention defendant’s record or the facts
of the case.) An overwhelming majority
of the prospective jurors questioned
knew nothing about the case. Thus, the
trial court correctly concluded that the
pretrial publicity regarding defendant’s
case would not prevent a fair trial in
San Francisco County.

E. Jury Venire

Defendant
unsuccessfully moved to quash the panel
of prospective jurors from which his
jury was selected, asserting that Blacks,
Hispanics, women, youths, prospective
jurors with high school or less
education, and blue collar workers were
underrepresented on the panel, and that
his jury was therefore not selected from
a fair cross-section of the community.
The motion was based on the records of
motions in three other criminal cases
that challenged jury selection
procedures in San Francisco County (People
v. White (Super. Ct. San Francisco
County, 1991, No. 117535), People v.
Thompson (Super. Ct. San Francisco
County, 1991, No. 124613), and People
v. Henderson (Super. Ct. San Francisco
County, 1986, No. 109544))

6
and on brief testimony offered by Dr.
Linda Meza, a psychologist involved with
the National Jury Project. Abandoning
most of these claims, defendant now
argues that the trial court should have
granted the motion on the ground that
Blacks and Hispanics were
underrepresented on his jury panel, in
violation of the Sixth and Fourteenth
Amendments to the federal Constitution
and article I, section 16, of the
California Constitution.

“In
order to establish a prima facie
violation of the fair-cross-section
requirement, the defendant must show (1)
that the group alleged to be excluded is
a ‘distinctive’ group in the community;
(2) that the representation of this
group in venires from which juries are
selected is not fair and reasonable in
relation to the number of such persons
in the community; and (3) that this
underrepresentation is due to systematic
exclusion of the group in the jury-selection
process.” (Duren v. Missouri
(1979) 439 U.S. 357, 364.)
Defendant satisfies the first of these
requirements: our cases hold that both
Blacks and Hispanics qualify as
“distinctive” groups for purposes of the
fair-cross-section requirement. (People
v. Bell (1989) 49 Cal.3d 502, 526
[Blacks]; People v. Ramos,
supra, 15 Cal.4th at p. 1154 [Hispanics].)
We need not determine, however, whether
defendant has complied with the second
requirement (showing that Blacks and/or
Hispanics are underrepresented), because
he has not met the third requirement: a
showing that any underrepresentation is
the result of systematic exclusion of
the particular group in the jury
selection process.

A defendant
cannot establish a prima facie case of
systematic exclusion of a distinctive
group merely by presenting statistical
evidence that the group is
underrepresented in the jury pool,
venire, or panel.

7
Rather, the defendant must show that the
underrepresentation “is the result of an
improper feature of the jury selection
process.” (People v. Howard,
supra, 1 Cal.4th at p. 1160; see
also People v. Bell, supra,
49 Cal.3d at pp. 528-529.) Here,
defendant has presented no evidence
describing the manner in which jury
pools, venires, and panels were created
in San Francisco in November 1988, when
jury selection in his case began. True,
the records of the three San Francisco
Superior Court cases mentioned above,
which were considered by the trial court
in this case, contained evidence
describing the manner in which this
process had occurred in previous years.
But defendant has offered no evidence
that the process operated in the same
manner at the time of his trial. As a
result, he has not shown that the jury
selection process contained any
“improper features.” (People v. Howard,
supra, 1 Cal.4th at p. 1160.)

III.
DISPOSITION

The
judgment is affirmed.

*****

1 Unless otherwise
stated, all further statutory references
are to the Penal Code.

2 At the time of
trial, Ridgeway was deceased. His
previously given testimony was read to
the jury.

3 As defendant
observes, the federal courts are not in
agreement as to whether jeopardy
attaches when the guilty plea is
accepted by the court, or when sentence
is imposed following the entry of that
plea. We express no views on the merits
of that debate.

4 At defendant’s
request, we take judicial notice of
legislative history relating to the 1935
amendment to section 1239(b); of
legislative history relating to the
passage in 1965 of section 1237.5,
requiring defendants who appeal
following a plea of guilt to obtain a
certificate of probable cause (see pt.
II.A.2.b., post); and of the
unpublished federal district court
decision in Massie v. Sumner
(N.D.Cal. Oct. 3, 1979 Dock. No.
C-79-1660) rejecting defendant’s attempt
to secure dismissal of the automatic
appeal of his death sentence arising
from his guilty plea. The materials are
appropriate subjects of judicial notice.
(See generally, Planning &
Conservation League v. Department
of Water Resources (1998) 17 Cal.4th
264, 271, fn. 4; People v. Eubanks
(1996) 14 Cal.4th 580, 591, fn. 3).
We deny, however, defendant’s request
that we take judicial notice of a series
of newspaper articles describing the
1935 execution of condemned inmate Rush
Griffin while his appeal was pending and
the ensuing proposals to require
automatic appeals of death sentences.
Nor do we take judicial notice of an
excerpt from a document entitled Review
of Selected 1965 Code Legislation, a
publication of California Continuing
Education of the Bar, discussing an
amendment to section 1237.5. (See
generally, People v. Ramos
(1997) 15 Cal.4th 1133, 1167; Mangini
v. R.J. Reynolds Tobacco Co.
(1994) 7 Cal.4th 1057, 1063-1065.)

5 “ ‘The doctrine of
the law of the case is this: That where,
upon an appeal, the supreme court, in
deciding the appeal, states in its
opinion a principle or rule of law
necessary to the decision, that
principle or rule becomes the law of the
case and must be adhered to throughout
its subsequent progress, both in the
lower court and upon subsequent appeal,
and, as here assumed, in any subsequent
suit for the same cause of action, and
this although in its subsequent
consideration this court may be clearly
of the opinion that the former decision
is erroneous in that particular.’ ” (People
v. Shuey (1975) 13 Cal.3d 835,
841, quoting Tally v. Ganahl
(1907) 151 Cal. 418, 421; see also
People v. Ramos, supra, 15
Cal.4th at p. 1161.) Here, defendant
challenges a principle of law necessary
to the decision of this court in his
previous appeal, a situation ordinarily
covered by the doctrine of law of the
case. Our cases do not state, however,
whether the doctrine may be applied
against a defendant who, as in this
case, was an unwilling participant in
the previous appeal. We therefore
assume for the sake of argument that the
doctrine is inapplicable and address
defendant’s claim on its merits.

6 We take judicial
notice of the files in these three
cases.

7 “The jury ‘pool’ is
the master list of eligible jurors
compiled for the year or shorter period
from which persons will be summoned
during the relevant period for possible
jury service. A ‘venire’ is the group
of prospective jurors summoned from that
list and made available, after excuses
and deferrals have been granted, for
assignment to a ‘panel.’ A ‘panel’ is
the group of jurors from that venire
assigned to a court and from which a
jury will be selected to try a
particular case.” (People v. Bell,
supra, 49 Cal.3d at p. 520, fn. 3.)

Appeal from the United States
District Court For the Northern District of
California Charles A. Legge, District Judge,
Presiding. D.C. No. C-01-1183-CAL N.D. Cal.

Before: SILVERMAN, GOULD, and
TALLMAN, Circuit Judges

PER CURIAM:

Michael A.
Kroll appeals after the district court
denied his motions to proceed as "next
friend" for, and stay the execution of,
RobertLeeMassie, a
California prisoner whose execution is
scheduled for March 27, 2001 at 12:01 a.m.
After carefully reviewing all the papers
before us and hearing oral argument by phone,
we affirm the district court's judgment and
deny a stay of execution.

RobertLeeMassie was
convicted and sentenced to death for the
January 3, 1979 murder of Boris Naumoff. See
People v. Massie,
967 P.2d 29 (Cal. 1998). Whether
Massie's conviction
and sentence meet federal constitutional
standards is not now before us. We focus
solely on whether the district court erred
when it concluded that Kroll lacked standing
to appear as Massie's
next friend. See Whitmore v. Arkansas, 495
U.S. 149, 164 (1990) (standing is
jurisdictional and the burden is on the next
friend to establish the propriety of his or
her status).

In order
to establish next friend standing, the
putative next friend must show: (1) that the
petitioner is unable to litigate his own
cause due to mental incapacity, lack of
access to court, or other similar disability;
and (2) the next friend has some significant
relationship with, and is truly dedicated to
the best interests of, the petitioner. See
Whitmore, 495 U.S. at 163-65. The district
court concluded that Kroll lacked standing
on the former ground. The district court's
finding that Massie
is competent is a factual determination, see
Demosthenes v. Baal, 495 U.S. 731, 735
(1990), that we accept unless clearly
erroneous.

Massie initiated
federal habeas proceedings in June of 1999.
On May 15, 2000, represented by the same
counsel who represented him on direct appeal
and thereafter, Massie
filed an amended petition asserting only
four claims. In order to determine whether
Massie was
competent to waive all other potential
claims, the district court conducted an
evidentiary hearing where
Massie appeared in person.
Massie explained
that it was his decision, not counsel's,
that only claims that would lead to
Massie's outright
release would be raised because, in
Massie's opinion,
another retrial would lead only to the same
result, another death sentence, or at best,
a sentence of life without the possibility
of parole. See Transcript of August 18, 1999
Hearing at 9-12.

In
response to direct questions by the district
court, Massie
testified that in the past ten years he has
not seen a prison psychologist or
psychiatrist, nor has he taken any
medication for psychological or psychiatric
matters. See id. at 6-7.
Massie also stated expressly that he
understood he was waiving all ineffective
assistance of counsel claims, including the
claim that present counsel was ineffective
for previously failing to raise possibly
meritorious issues. See id. at 15-16.

The
district court offered
Massie the services of independent
counsel with whom to consult, but
Massie refused. See
id. at 17. After extensive testimony by
Massie, the
district court found
Massie competent under the standard
of Rees v. Peyton, 384 U.S. 312, 313-14
(1966) (per curiam) (whether petitioner has
the capacity to appreciate his position and
make a rational choice with respect to
continuing or abandoning further litigation
or on the other hand whether he is suffering
from a mental disease, disorder, or defect
which may substantially affect his capacity
in the premises). See District Court's Order
of August 25, 1999 at 3.

In October
2000, Massie moved
to dismiss his federal petition. The
district court conducted an evidentiary
hearing on December 21, 2000.
Massie, who again
appeared in person, testified that he
changed his mind because: (1) he was
convinced in light of a recent court opinion
that one of the claims he asserted would not
lead to his release; and (2) it was not the
conditions of confinement but the quality of
life in prison that led him to change his
mind and dismiss his petition, adding that
"[s]ome people prefer to just go ahead and
move on." See Transcript of December 21,
2000 Hearing at 17, 20.
Massie confirmed that he had not
received any medical or psychiatric care or
taken any medications since the last hearing.
See id. at 11.

Massie stated he
understood that he was under a sentence of
death and that the dismissal of his petition
would result in his death. See id. at 18-20.
The district court also heard the sworn
testimony of Massie's
counsel, Fred Baker, who has represented
Massie since 1993.
Baker testified that
Massie is "competent, highly
intelligent, well-informed, and insightful
with respect to the legal and the other
issues involved in this case." See id. at 6.
Asked by the court about the number of his
communications with Massie
concerning the subject of dismissing his
petition, Baker testified that "there have
been dozens of written communications," "at
least a dozen telephone conversations," and
"two in-person visits." See id. at 5.

The
district court found that
Massie was competent to dismiss his
petition and that his decision to do so was
knowing, intelligent, and voluntary. See id.
at 27. The district court gave
Massie until
January 8, 2001 to reconsider. See id. at
28. Having heard nothing from
Massie, the
district court later dismissed
Massie's petition.
See District Court's Order of January 8,
2001. The state courts thereafter set
Massie's execution
for March 27, 2001.

Three
state medical doctors interviewed
Massie for fifty-five
minutes on February 22, 2001 and for forty-five
minutes on March 7, 2001. Although these
doctors did not specifically address the
competency standard under Rees v. Peyton,
each concluded that Massie
understood that he was about to be executed
and why.1
California Department of Corrections Staff
Psychiatrist S.C. Gibbs, M.D., submitted a
report of his evaluation of
Massie that took
place on March 7, 2001. He reported that:

In
interview inmate Massie
was calm, and entirely appropriate in his
behavior. He conversed in a rational manner
and indicated a full understanding of his
circumstances. He was fully oriented to
time, person, and place. He discussed at
length his viewpoint and the rationale
behind it. At no point did he manifest
evidence of any mental disorder or defect.

See March
7, 2001 7-Day Pre-Execution Report by S.C.
Gibbs, M.D.

On or
about March 20, 2001, Michael A. Kroll, a
journalist who over the past fifteen years
has corresponded, and at times met, with
Massie, filed in
the California Supreme Court essentially the
same next friend petition that underlies
this appeal. On March 22, 2001,
Massie's counsel
submitted a response to the next friend
petition, which included a declaration
signed by Massie on
March 22, 2001. Massie
opposed the next friend petition and asked
the California Supreme Court not to file it.

On March
23, 2001, the California Supreme Court
denied the next friend petition because,
inter alia, it failed to show that
Massie was
incompetent to elect not to seek habeas
relief. See California Supreme Court Order
of March 23, 2001.

In
district court that same day, March 23,
2001, Kroll filed, on
Massie's behalf, motions to file an
amended petition and for stay of execution.
The district court conducted a hearing late
that afternoon and, for reasons stated
orally from the bench, denied both motions
early that evening. Kroll has appealed.

At oral
argument in this Court,
Massie, through counsel, opposed the
next friend petition. We now review to
determine whether Kroll can establish
standing.

Kroll
insists that Massie
is now incompetent to waive his habeas
proceedings. Kroll asserts, in the petition
which he seeks to file on
Massie's behalf, that
Massie's underlying
conviction for murder is invalid because,
inter alia, the trial court failed sua
sponte to order a competency hearing for
Massie despite
numerous indications that
Massie may have been incompetent to
stand retrial in 1989.

Kroll
maintains that Massie
was also incompetent at his 1965 murder
trial and therefore evidence of that
conviction should not have been admitted for
special circumstance and aggravating
evidence purposes at his 1989 retrial. Kroll
also contends that appellate counsel, who
represented Massie
in his direct appeal of his 1989 conviction
and thereafter, rendered ineffective
assistance of counsel because counsel
acquiesced in Massie's
suicidal wishes and only raised the claims
that Massie wanted
raised even though those claims purportedly
are legally frivolous.

Kroll
further alleges that appellate counsel were
civil lawyers, inexperienced in capital
habeas litigation; that appellate counsel's
opening brief was so deficient that the
California Supreme Court instructed counsel
to raise every arguable issue; and that
despite this order, counsel filed a
supplemental brief challenging the Supreme
Court's order to force counsel to raise
claims not desired by the client.

Kroll
includes numerous documents that allegedly
show that: Massie
was abused and neglected as a child;
Massie was twice
gang-raped in prison as a young man;
Massie has a
lengthy history of serious mental problems
dating from before the eighth grade,
continuing through his 1965 murder trial,
through his 1979 trial for Naumhoff's murder,
and through his 1989 retrial;
Massie has been
diagnosed as schizoid, manic depressive,
perhaps schizophrenic;
Massie was prescribed anti-psychotic
medications during the 1979 trial and 1989
retrial; Massie
contemplated suicide on more than one
occasion during the 1989 trial; jail staff
moved Massie to a
special observation unit during the 1989
trial; counsel informed the trial judge in
the 1989 retrial that a competency hearing
would be appropriate and unless
Massie were
returned to regular jail housing, the
attorney-client relationship would be
disrupted; and the trial judge in the 1989
retrial ordered Massie
returned to regular jail housing even though
jail staff considered
Massie a severe suicide risk.

We have
carefully considered Kroll's allegations and
contentions regarding
Massie's history of mental problems
and Massie's
alleged incompetency during his 1989 trial.
However, Massie's
prior history of mental problems and alleged
incompetency during his 1989 trial concern
events which are now twelve and more years
old. Kroll must show that
Massie is currently incompetent to
waive further federal habeas proceedings.
Cf. Baal, 495 U.S. at 737 (prior suicide
attempts are insufficient to demonstrate
present incompetency); cf. also Wells v.
Arave, 18 F.3d 658, 660 & n.5 (9th Cir.
1994) (Reinhardt, J., dissenting from denial
of en banc review after three-judge panel
denied a stay of execution) (arguing that
stay was warranted because petitioner had a
documented history of serious mental illness
including psychosis, delusional thinking,
and auditory hallucinations).

Mental
incompetency in the "next friend" context
must meet the Rees v. Peyton, 384 U.S. at
314, standard. See Whitmore, 495 U.S. at 166
(citing Rees). The putative next friend must
present "meaningful evidence" that
petitioner is suffering from a mental
disease, disorder, or defect that
substantially affects his capacity to make
an intelligent decision. See id. (citing
Rees).

The
transcripts of the hearings conducted by the
district court in August 1999 and December
2000 clearly reveal Massie
to be lucid, responsive, logical, coherent,
and fully aware of his situation. The
district court's painstakingly thorough
questioning of Massie
demonstrated beyond any doubt that
Massie understands
the consequences of his actions and that he
has made a rational choice to abandon
further litigation. Massie
testified that he would rather be executed
than pursue legal remedies that, at best,
would assure that he spend the rest of his
life in prison.

The
district court expressly found both that
Massie satisfied
the Rees v. Peyton competency standard, see
District Court Order of August 25, 1999 at
3, and that Massie's
decision to dismiss his petition was knowing,
intelligent, and voluntary, see Transcript
of December 21, 2000 hearing. Cf. Comer v.
Stewart, 215 F.3d 910 (9th Cir. 2000)
(capital petitioner on appeal moved to waive
further federal proceedings; this court
remanded for competency hearing when prior
competency determination was more than a
decade old).

Three
state doctors who interviewed
Massie in late
February and early March of this year each
concluded that Massie
understands he is about to be executed and
why. The doctors examined
Massie to determine whether he was
competent for execution, not whether he was
competent to waive federal habeas
proceedings. See Ford v. Wainwright, 477
U.S. 399, 422 (1986) (Powell, J., concurring);
cf. Rees, 384 U.S. at 313-14. However, the
doctors also noted that
Massie was oriented to time, person,
and place; was coherent and exhibiting
rational behavior; had fully intact thought
processes; and had no indication of mental
illness.

In the
face of this record, the only evidence of
current incompetency that Kroll offers is
the following: (1) his own lay declaration
in which he states that
Massie's history of childhood abuse
and neglect and his current depression and "obvious
mental illness" render
Massie unable "to make a rational
decision about whether to continue his
appeals;" (2) the declaration of
Robert Bryan,
counsel at Massie's
1989 retrial, who states both that
Massie's current
course of action is another manifestation of
Massie's suicidal
wishes and that on March 21, 2001 Bryan met
with Massie and
when Bryan asked Massie
why Massie's
counsel had not raised a speedy trial claim
which, if successful, could have led to
Massie's release,
Massie's thought
processes became increasingly disorganized,
his responses illogical, and his reasoning
was "out of control;" (3) a declaration by
George Woods, M.D., who admits he has never
examined Massie yet
nonetheless opines that
Massie is seriously mentally ill and
there is a "high probability" that serious
mental illness is impairing
Massie's capacity
to make rational decisions;(4) a declaration
by Pablo Stewart, M.D., who states only that
Massie should have
been tested for competency at his 1989 trial;
(5) a declaration by Fred Rosenthal, Ph.D.,
M.D., a defense psychiatric expert at the
1989 retrial, who states that
Massie's current
behavior is consistent with his long-standing
self-destructive impulses and that
Massie's serious
mental illness prevents him from being able
to make rational decisions now; and (6) a
San Quentin prison record showing that in
February 1990 Massie
complained of "psychological problems" and
requested examination by the Unit
Psychiatrist for medication.2

We agree
with the district court that Kroll has
failed to present "meaningful evidence" of
current incompetency because: (1) Kroll's
declaration cites no bizarre behavior by
Massie and Kroll is
not a mental health expert; (2) "Bryant
(sic) really says that Mr.
Massie has not been stating, to Mr.
Bryant's (sic) satisfaction, his explanation
or understanding of certain legal concepts,"
see Transcript of March 23, 2001 Hearing at
5; (3) Dr. Woods has never examined
Massie and he bases
his opinion on records that are twelve years
old; (4) Dr. Stewart expresses no opinion on
Massie's current
competence; and (5) Dr. Rosenthal's opinion
"is based upon absolutely no evidence since
1989," see id. at 6. Cf. Baal, 495 U.S. at
736 (conclusory opinions by doctors who have
not personally examined the prisoner are
insufficient to establish mental
incompetency for next friend purposes).
Massie's 1990
request for a psychiatric exam is also
insufficient to demonstrate current
incompetency because that request is now
eleven years old.

Kroll,
however, also argues that the district
court's two hearings were inadequate because:
(1) some of Massie's
answers were supposedly nonsensical and
demonstrate that Massie
does not have the capacity to fully
appreciate his position and make rational
decisions; (2) counsel for
Massie and counsel for the State both
misled the court when they each stated they
were unaware of any reason to question
Massie's competency;
and (3) that so misled, the district court's
competency determinations are flawed because
they were made without the benefit of
clinically relevant information.

At the
December 21, 2000 hearing,
Massie stated he changed his mind
because even were he to prevail on one of
his four claims, a recent case had convinced
him that "the ultimate result would be to
reduce the general party bar conviction to
the alternative of second degree burglary
which would, in my case, amount to a twenty-five
years to life sentence . . . ." See
Transcript of December 21, 2000 at 16-17. In
context, it is apparent that
Massie was saying
that he had come to the realization that
none of his legal maneuverings would result
in an outright acquittal.

We have
also considered Kroll's contention that
counsel for both the State and for
Massie misled the
district court when they answered that they
were unaware of any reason to question
Massie's competency.
Given that Massie
has had no overt signs of mental illness
over the past eleven years, we reject the
argument that the attorneys' failure to
fully inform the court of
Massie's prior history of mental
problems fatally flaws the district court's
finding that Massie
is currently competent.

Kroll
insists that the district court's competency
determinations are inadequate because
Massie's current
competency cannot be assessed without
reference to Massie's
history of mental illness which Kroll
alleges is documented as four decades in
length. Past mental illness, however, is not
enough to upset a current determination of
competency. See Brewer v. Lewis, 989 F.2d
1021, 1026 & n.6 (9th Cir. 1993) (concluding
that when four experts who had examined
petitioner determined he suffered from a
personality disorder yet all agreed he was
competent, neither petitioner's long
standing mental problems, nor even his
current belief that after his execution he
and the girlfriend he murdered would live
together on another planet, constituted "meaningful
evidence" that petitioner was suffering from
a mental disease, disorder, or defect that
substantially affected his capacity to make
an intelligent decision); cf. Vargas v.
Lambert, 159 F.3d 1161, 1170-71 (9th Cir.) (staying
execution because next friend presented
meaningful evidence that condemned was
suffering from a mental disease, disorder,
or defect that substantially affected his
capacity to make rational decisions;
condemned was currently being medicated with
psychotropics, sleeping sixteen hours a day,
and one expert diagnosed condemned as
psychotic), stay vacated by Lambert v.
Vargas, 525 U.S. 925 (1998). All of the
evidence of Massie's
alleged incompetency relates to time periods
predating 1991. The district court's
findings of fact on Massie's
current incompetency are not clearly
erroneous.

In light
of the totality of this record and the law
that controls this inquiry, we agree with
the district court which found
Massie competent
based upon substantial evidence developed in
two evidentiary hearings and concluded that
Kroll had failed to show that
Massie currently
has a mental disease, disorder, or defect
that substantially affects his capacity to
make a rational choice concerning continuing
or abandoning further proceedings. See
Brewer, 989 F.2d at 1026 & n.6; Vargas, 159
F.3d at 1170-71, stay vacated by Lambert,
525 U.S. 925 (1998). Consequently, Kroll
lacks standing to file a next friend
petition. See Whitmore, 495 U.S. at 165-66.3

The
judgment of the district court is AFFIRMED.
Kroll's emergency motion for a stay of
execution is DENIED.

See Ford v. Wainwright,
477 U.S. 399, 422 (1986) (Powell, J.,
concurring) (the Eighth Amendment forbids
the execution only of those who are unaware
of the punishment they are about to suffer
and why they are to suffer it); cf. Rees,
384 U.S. at 313-14 (whether petitioner has
the capacity to appreciate his position and
make a rational choice with respect to
continuing or abandoning further litigation
or on the other hand whether he is suffering
from a mental disease, disorder, or defect
which may substantially affect his capacity
in the premises).

Although Kroll questions
whether the State has turned over the
entirety of Massie's
San Quentin psychiatric file, the State
represents that it has done so. See Brief in
Opposition to Emergency Motion at 22 n.6.

Because Kroll fails to
meet Whitmore's first prong for standing we
need not address Whitmore's second prong,
i.e., whether Kroll has some significant
relationship with Massie
and is truly dedicated to his best interests.
See Whitmore, 495 U.S. at 163-64.